Serving As Advisor to Bar Association Education Conference, Moderating Bench Bar Panel, Attending Bench Bar Reception, and Conference Ball
January 13, 2011
CJE Opinion No. 2011-1
You have received an invitation from a bar association to participate in a conference. Specifically, the bar association has asked you to serve as advisor to the conference, to moderate a bench bar panel, and to attend a bench bar reception. The bar association has also indicated that you are welcome at any other events, including a ball. You ask if participating in these activities is consistent with your obligations under the Code. The Committee believes that it is.I. Background
The bar association intends go to great lengths to make the conference a success, and that, "includes raising funds from law firms of all sorts and other organizations throughout the Commonwealth . . . ." The bar association is not asking you to be directly involved in any way with the solicitation of sponsors or financial planning.
The list of conference sponsors to date currently includes three law firms at the "Platinum" level, one insurance company at the "Gold" level, three law firms and one bank at the "Silver" level, one legal research support entity at the "Bronze" level, and one law firm, one county bar association, and one law school at the "Friend" level. In addition, the bar association expects its affiliated insurance agency to donate a significant amount. By the time of the conference, the bar association expects to be receiving approximately thirty-six other sponsors from a broad array of law firms, law schools, and non-profits, and from corporations that typically support law firms, such as court reporting services, mortgage companies, and many entities similar to those that typically advertise in Massachusetts Lawyers Weekly.
In addition, the bar association staff has said that the price of a ticket will be around $150. The overall conference costs will exceed the $150 ticket price and all proceeds from ticket sales and sponsors will go towards the costs of the event and not support the bar association's activities beyond the costs of the event itself. However, in an effort to include an altruistic dimension in the conference event, the fund-raising committee has discussed setting aside $30,000 of the money raised to present a scholarship to one or more "needy" law students. The scholarship presentation will take place at the conference.
Your participation will be limited to being the moderator of the bench bar panel, which will be educational in nature, and being an advisor to the bar association on the educational portion of the conference. The bar association does not intend to use your name in any way associated with fund raising or as an inducement to potential sponsors. It intends to mention your participation in its newspaper, online on its web page, and in its e-mail blast. The bar association will not be highlighting your role beyond this, nor does it intend to present you with an award.
The bench bar panel, including participants, and the bench bar reception will be included in the overall conference written and online programs, which will include a listing of the sponsors and their advertisements. There will not be a special sponsor for the bench bar portions of the conference. It is uncertain whether bar association leadership will publicly acknowledge sponsors at either of the bench bar events. At the ball, bar association leadership will publicly acknowledge the sponsors orally and by means of visual display of their logos, etc.
The bar association intends to invite other judges to participate in conference, including the bench bar events, but none has yet been invited.
The Code permits a judge to "speak, write, lecture, and teach concerning legal and nonlegal matters and [to] participate in legal and nonlegal activities." Section 4B. The commentary to Section 4 contemplates the judiciary's involvement with bar associations, explaining that,
"[a]s a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the integrity of the legal profession and to the improvement of the law, legal system, and administration of justice . . . . To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law."
Commentary to Section 4B (emphasis added); see, e.g., Commentary to Section 4C(a) ("A bar association . . . qualifies as an organization on which a judge may serve as . . . [a] non-legal advisor."). The educational nature of the conference events you describe indicate that your participation would be consistent with these Code provisions.(1)
The Code, however, places limits on a judge's conduct, with Canon 2 providing that "[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities[,]" and Section 2B directing the judge not to "lend the prestige of judicial office to advance the private interests of the judge or others . . . ." Canon 4 governs a judge's extrajudicial activities specifically, instructing him to conduct such activities so that they do not "cast reasonable doubt on the judge's capacity to act impartially as a judge; or . . . interfere with the proper performance of judicial duties[,]" Section 4A(1), (3), and prohibiting him from "personally participat[ing] in . . . fund-raising activities," Section 4C(3)(b)(i),(2) and from using or permitting the use "of the prestige of judicial office for fund-raising or membership solicitation." Section 4C(3)(b)(iv).
Your participation in these bar association events triggers these Code provisions concerning fund-raisers and the appearance of impropriety.
The Code prohibits a judge from personally participating in an organization's fund-raising activities and from using or permitting the use of the prestige of judicial office for purposes of fund-raising. Section 4C(3)(b)(i), (iv). "These restrictions are primarily designed to assure that a judge does not neglect his official duties, that he does not use, or give the impression of using, his official position to further the interests of the [organization] involved, and that the people who work within the judicial system and those who come before it do not feel pressured to help a cause being championed in any way by the judge." CJE Opinion 2000-4.
While "mere attendance at [a fund-raising event] is permissible if otherwise consistent with [the] Code[,]" Commentary to Section 4C(3)(b), "[a] judge must not be a speaker or guest of honor at an organization's fund-raising event . . . ." Id. "A laudatory reference to a judge, not announced in advance, does not make the judge a `guest of honor' for purposes of this rule." Id. Although the bar association is not honoring you, your involvement in the bar association's events "involve[s] prominent participation in the event, well beyond mere attendance." CJE Opinion 2009-1; see id. (noting that "there is no distinction between the role of a guest of honor . . . and being the keynote speaker"). The Code therefore prohibits this involvement if the conference is a fund-raiser.(3)
The Code defines a fund-raising event as "one where the sponsors' aim is to raise money to support the organization's activities beyond the event itself." Commentary to Section 4C(3)(b). Further, the Committee has defined "a `fund-raising' event [as] one in which `tickets are priced to exceed the costs of the function' itself." CJE Opinion 2009-1; see, e.g., CJE Opinion 95-8 (contrasting permissible attendance - where "attendance is conditioned on purchase of a ticket at a relatively nominal cost" - with impermissible attendance - "the requested donation is to be used as an expense fund in connection with [the organization's] litigation activities"). Here, the opposite is the case: the overall conference costs will exceed the ticket price; and the ticket proceeds will go towards the costs of the conference itself rather than to support the bar association's activities beyond the conference. On this basis, the conference is not a fund-raiser. The fund-raising committee, however, has discussed using $30,000 of the money raised to present a scholarship to law students in need; the bar association would present this scholarship at the conference. In CJE Opinion 2009-1, while the event's ticket sales would likely not cover the event's costs, "the event notice [said], that `[a] portion of the proceeds goes to [a charitable organization].'" (First alternation added). The Committee acknowledged that it "has not had occasion to determine whether an event that advertises itself, at least in part, as a fund-raiser should be viewed as a `fund-raiser' for purposes of the code even though the event's sponsor anticipates that ticket proceeds may not cover the event's costs and intends to contribute to a target organization even if the event runs at a loss." Id. The Committee did not resolve this issue because, unlike in this matter, the judge's participation in that situation was inconsistent with the Code on another basis. Id.
The Committee believes that resolution of this question must be made on a case-by-case basis. Cf. CJE Opinion 99-15 (declining to develop "a list of organizations that have been `approved' or `disapproved' for judicial participation. . . . given the fluid nature of organizational goals and charters . . . . [and] highly fact-sensitive judgements about membership that each case inevitably requires"). Although involving different Code provisions, CJE Opinion 92-2 provides guidance. There, the judge asked the Committee whether he could "purchase tickets for and attend a charitable fund-raising dinner in honor of a particular State senator, who [was to] be `roasted' at the dinner." Id. Prominent political figures were featured speakers, and the dinner's proceeds went to "a non-profit, multi-service agency, with tax-deductible status, which focuses its activities on the treatment and rehabilitation of substance-abusing women." Id.
Then-applicable Canon 7(A)(1)(c) - the precursor to Section 5A(1)(c) - precluded a judge from attending political gatherings or purchasing tickets for political party dinners "or for any other type of political function." The Committee acknowledged "the political cast of the dinner," but concluded that it was not "a political gathering, a political party dinner, or a political function . . . because the purpose of the dinner [was] not to raise money for or otherwise support a political candidate, party, or cause." Id. (4) (emphasis added); see, e.g., CJE Opinion 2000-7 (opining that "same considerations" as in CJE Opinion 92-2 led to conclusion that judge could attend charitable organization's fund-raising event "chaired by a state senator from [judge's] area . . . [that] honor[ed] the sheriff of a county in a part of the State in which [judge] regularly [sat]"). The Committee "caution[ed], however, that in factual situations where a gathering might be thought to have a dual function of supporting both a charitable cause and a political cause, a judge could not properly be in attendance" because the Code prohibits even mere attendance at a political event. CJE Opinion 92-2 (emphasis added).
Here, your description demonstrates that the conference has a dual function: (1) to celebrate the bar association through educational events involving the bench and bar; and (2) to fund a scholarship to benefit needy law students in furtherance of the conference's - and the bar association's - educational focus. Even though these two purposes are intertwined in that the decision to fund a scholarship is consistent with the educational cast of the conference, they are severable in terms of your duties under the Code.
You "shall not personally participate in the solicitation of funds or other fund-raising activities," Section 4C(3)(b)(i), and you "shall not use or permit the use of the prestige of judicial office for fund-raising . . . ." Section 4C(3)(b)(iv). You will not run afoul of these provisions as your participation in the Conference is clearly limited to the celebratory, educational aspect by serving as an advisor to the bar association and as the moderator of a Bench Bar Panel. See Section 4B & Commentary. The bar association does not intend to use your name for fund-raising purposes in any capacity, and while its print and electronic publications will mention your participation in the educational aspects, the bar association will not otherwise highlight your role.(5)
The Committee also cautions you that while you may attend the ball or any other conference event when bar association leadership presents the scholarship and publicly acknowledges the sponsors, Commentary to Section 4C(3)(b), you may not participate in those fund-raising-related events by playing an obvious role in connection with that presentation and acknowledgment. It is on this basis that the Committee's warning in CJE Opinion 92-2 that a judge could not attend an event that had "a dual function of supporting both a charitable cause and a political cause" does not apply.
Therefore, the conference is structured in such a way that your participation in the educational aspect is consistent with the Code in that it will not give the impression that you are participating in or using the prestige of judicial office for the fund-raising aspect. See Section 4C(3)(b)(i), (iv); CJE Opinion 2000-4.
B. Appearance of Impropriety
As noted, Section 2B provides that "[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 concluded that even partial sponsorship of an event "by two organizations that have recurring, substantial business in the courts of the Commonwealth means that [judicial] attendance at that event would be inconsistent with §2B." CJE Opinion 2009-1. Where an event's sponsorship is comprised of a large and diverse body, however, judicial attendance likely does not violate Section 2B of the Code.
For example, in CJE Opinion 2007-4, the judge asked the Committee whether he could "attend and be honored at an upcoming event to `celebrate Justices of Color' that [was] being sponsored by a consortium of certain law firms and other organizations that employ attorneys." "[M]embership in the consortium [was] broadly available to all greater Boston law firms, legal services organizations, governmental legal organizations, and organizations of corporate counsel who wish to join." Id. ; see id. (noting that this composition gave the consortium "many of the characteristics of a bar association"). The consortium's large size and diversity coupled with the fact that "invitations to the event [were] broadly sent to representatives of all segments of the bar in the greater Boston area," led the Committee to conclude that the judge's attendance "would not convey the appearance that member firms [were] in a special position to influence [the judge] . . . nor would [his] attendance further their private interests." Id. The judge's attendance would therefore not be improper under Section 2B. Id.
CJE Opinion 2009-1, although distinguishable on its facts, is consistent with CJE Opinion 2007-4. There, although there were "several `event sponsors'" listed on the function's announcement, it was the "prominent, partial sponsorship of the event by two organizations that have recurring, substantial business in the courts of the Commonwealth" that made the judge's "attendance at that event . . . inconsistent with §2B." CJE Opinion 2009-1. One of those sponsors "was an established Boston law firm with considerable ongoing business in the courts of the Commonwealth. The other was a consulting firm that is frequently involved in litigation in Massachusetts courts." Id. "Under those circumstances, acceptance of an award at a function the two firms prominently sponsor, albeit in collaboration with others, would not be consistent with the code's requirement that judges avoid creating, or permitting others to create, the impression that they are in a special position to influence the judge's decisions." Id. "[A]n objective, disinterested observer fully informed of the relevant facts could entertain a serious doubt about a judge's ability to handle impartially a matter in which one side was represented or assisted by a firm that had publicly sponsored a large public function at which the judge had received a major award." Id.
The situation in this case is more similar to that in CJE Opinion 2007-4 rather than CJE Opinion 2009-1. The Conference sponsors are sufficiently diverse as to negate any appearance of impropriety under Section 2B, and the Bench Bar events will not have a special sponsor. Currently, the sponsors include law firms, an insurance company, a bank, a legal research support entity, a law school, and a county bar association, and there is the expectation that additional sponsors will include more law firms and entities that typically support law firms, such as court reporting services and mortgage companies. Unlike in CJE Opinion 2009-1, no single sponsor predominates over any other sponsor in such a way as to create the impression that the judge would be unable to handle impartially a matter involving that sponsor. Rather, given the events' wide array of sponsors, it is likely that "many litigation matters in which one [sponsor] is involved also would involve other members on opposite sides." CJE Opinion 2007-4. Thus, just as in CJE Opinion 2007-4, judicial attendance at this event would "not run counter to the prohibitions contained in Section 2B of the Code." Id.
For the foregoing reasons and with the caveats mentioned above, your involvement in the educational events described above are consistent with the Code as your participation in the educational aspect of the conference is severable from the fund-raising aspect of the conference, and as the presence of a diverse array of sponsors negates the impression that any entity is in a special position to influence your decisions.
1. As the moderator, you would facilitate the panel's discussion, conduct that is distinguishable from explicitly expressing one's views as a bar association's section chair which the Committee in CJE Opinion 97-7 found would interfere with the impartiality and integrity of the judiciary. In that role, the judge's tasks were to have included acting as the bar association's spokesperson "in connection with matters that may be before a court," appointing as "`key section leaders'" individuals who were likely to appear before the judge, and handling policy questions by voting, making recommendations, and filing amicus briefs. Id. There is no similar risk, here, that the moderator and advisor roles in and of themselves could compromise the judge's impartiality. See, e.g., CJE Opinion 2005-5 (permitting judge to moderate discussion on local public access radio, but instructing judge to "avoid an advocacy role" by "com[ing] to the defense of a guest or . . . correct[ing] misstatements or improper comments of . . . guests"); CJE Opinion 2002-13 (permitting judge to serve as panelist at educational conference focusing on interaction of judiciary and media during trials, but advising judge to "exercise great caution" in not mentioning specifics of particular cases and ensuring that others did not in his presence).
2. It is clear from your description that your involvement does not implicate the other provisions of Section 4C(3)(b)(i) precluding a judge from participating in the management and investment of an organization's funds, from assisting "in planning fund-raising," and in personally participating "in the solicitation of funds . . . ."
3. One of the factors to consider in determining whether a judge is lending the prestige of judicial office to advance the private interests of others is "the use the organization makes of the judge's participation in the organization's advertising and other promotional material . . . ." CJE Opinion 99-15. Here, the bar association intends to mention your participation in its print and electronic publications as well as in the print and electronic conference materials; the bar association will not use your name in connection with fund-raising or as an inducement to potential sponsors. On this basis, then, your involvement is not inconsistent with the Code. See, e.g., CJE Opinion 98-1 (concluding that being honored at bar association event as past president did not violate Code because judge was not speaking at event, he was not named in solicitation letters, his honor had nothing to do with his judicial status, and he was not "guest of honor" because he was being honored along with other past presidents).
4. That dinner was, instead, a fund-raiser which the judge was permitted to attend because he was not a speaker or a guest of honor. Id.; see Commentary to Section 4C(3)(b).
5. CJE Opinion 89-3 demonstrates the importance of the bar association's not using your name in connection with the fund-raising aspect of the Conference. There, the requesting judge was one of the seven graduates a college was to honor at an event which it advertised as "A Tribute to Justice." There was no dispute that the event was a fund-raiser as its "primary purpose . . . [was] to raise funds for the college . . . ." Id. The fact that the judge's "participation would apparently be passive in nature" and "`more in the nature of a side event or entertainment[,]'" however, did not reduce his presence to "mere attendance" which would be permissible under the Code. See id. Instead, the fund-raiser treated the seven judges as guests of honor, and the Code precluded the judge's participation in this manner precisely because the event's primary purpose was to raise funds. See id.; Commentary to Section 4C(3)(b).