Speaking to the Local Chamber of Commerce
August 15, 2011
CJE Opinion No. 2011-2
You have asked whether you may speak at a local Chamber of Commerce event on issues that relate to the administration of justice and the budgetary crisis in the courts, presuming that the event has no other sponsors and the local Chamber is not frequently involved in litigation "in the courts where you sit." Additionally, you had previously asked whether you may speak at a Chamber of Commerce event where there are sponsors but they are not frequent litigants before the court. You have also asked whether you may speak, presumably on the same subject, to a local Rotary Club with the similar qualification regarding absence of sponsors who are involved in frequent litigation.
As we recognized in CJE Opinion 03-1, the Chamber of Commerce "is a well-recognized, and well-respected, organization dedicated to advancing and promoting the interests of the Boston business community.(1) As part of this mission, the chamber sometimes litigates or files amicus briefs. In addition, it takes positions on matters likely to affect issues that will come before the courts in various forms and fashions, and its members appear regularly in many of the Commonwealth's courts." Furthermore, while we noted the obvious fact that these are proper activities in which the chamber and its members engage, we viewed those activities as "plac[ing] the chamber and its members on one side of contested -- sometimes hotly contested -- issues." This advocacy activity of the Chamber of Commerce has increased significantly in recent years, to the point where it now describes itself as "a lobbying and political powerhouse.(2) The National Chamber Litigation Center is a public policy law firm of the U.S. Chamber of Commerce. Its activities include initiating litigation, filing amicus curiae briefs, hosting moot courts for advocates in the U.S. Supreme Court and working with the media to advance its perspective on the effect of business cases on the U.S. economy.(3) The Chamber's Institute for Legal Reform is actively involved in a campaign to reform the legal system at both the federal and state level. (4) While local Chambers of Commerce may be technically separate from the national organization, the shared name and affiliation makes it unlikely that a reasonable observer would know or understand these internal distinctions.
This Committee has often been called upon to address participation by judges in activities of various kinds that involve interaction with groups and/or individuals that may be reasonably identified with or otherwise supportive of a particular class of litigants. Such requests have implicated Canon 2 of the Code of Judicial Conduct which provides, in part:
"(A) A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. (B) [A judge] should not . . . convey or permit others to convey the impression that they are in a special position to influence him."
Initially, we have noted in CJE Opinion 07-6 that, "[f]or purposes of analysis under Section 2 B, there is no distinction between the role of a guest of honor, which was involved in Opinion 2007‑4, and being the keynote speaker [at a certain event in which a presenting sponsor was both prominent and a frequent litigant]. Both involve prominent participation in the event, well beyond mere attendance." We view speaking before the Chamber similarly.
In our Opinion 03-1, the committee, in relevant part, advised the judge not to accept an award offered by the Chamber of Commerce, citing CJE Opinion 98-2.(5) We decided that since the chamber and its members regularly take one side on contested issues in, or affecting rights asserted in, the Commonwealth's courts, acceptance of an award might convey the impression that the judge favored the organization's approach to the issues with which it dealt, and that the organization was in a special position to influence the judge, the judge should not accept the award. Similarly, in CJE Opinion 98-9, we counseled against a judge's attendance at meetings of the Steering Committee of a Safe Neighborhood Initiative (SNI) (composed of representatives from the various police departments within the jurisdiction of the judge's court, the District Attorney's Office and the D.A.'s Victim/Witness program); this advice was given, notwithstanding its likely beneficial efforts to the community, due to the law enforcement functions primarily represented by the SNI, exposing the judge to the concerns of those aligned with the prosecution in criminal cases. See also CJE Opinion No. 97-8 (advising that a judge would be prohibited from accepting an invitation from the SNI in his area to participate in a tour of a designated area of the city, since "[t]he purpose of the tour is to show members of the court areas of the city affected by activities of defendants who appear before them.") While we recognized in that opinion the importance of judges informing themselves about the communities in which they serve, we concluded in Opinion 97-8 that participation in the tour "would call the impartiality of the judges into question and would have the potential to convey the impression that members of the group had a special position of influence with the judges."
Again, in CJE Opinion No. 98-16, we advised that a judge should not attend meetings of a monthly domestic violence "roundtable" by a victim/witness advocate from the District Attorney's Office. Because the discussions concerned issues regarding the detection of and response to domestic violence, usually, but not always, from a law enforcement, prosecutorial, and probationary standpoint, we counseled against a judge's participation since it "is fraught with the same dangers, i.e., that the judge may be perceived as being on the victim's 'team' in G. L. c. 209A proceedings or in the prosecutions of c. 209A violations or domestic assaults, or that the other attendees may be viewed as having the opportunity, in essentially a one-sided format, to suggest the validity of certain legal positions that will inevitably come up in such proceedings."
We see little difference of significance from the activity which you have described and our opinions advising judges against acceptance of an award from the chamber and attendance at one-sided events, such as the safe streets initiatives and the domestic roundtables described in our opinions referenced above. Your participation in such activity would "convey or permit others to convey the impression that they are in a special position to influence [you]," and that it would tend to "reflect adversely upon [your] impartiality." Consequently, the similarities lead the committee to offer the same advice here: you should decline the invitation to speak to the Chamber of Commerce.
Although your request offered few details about the local Rotary Club, we assume that it is one of the many local clubs chartered under the parent Rotary Clubs International which, according to its website (http://www.rotary.org), is a service organization with a humanitarian mission, "encourages high ethical standards in vocations and seeks to assist in building goodwill and peace in the world." While the individual members of such an organization may hold interests which may become involved in litigation, we see no parallels of significance with the Chamber of Commerce that would raise similar concerns of potential violations of the code of conduct to prevent your speaking to such group.
In sum, Canon 2 does not provide a bright-line rule, but rather requires judges to ascertain the nature of the group and whether speaking before it implicates the Canon 2 admonitions noted above. This best balances the important values of the appearance of judicial neutrality without unduly isolating judges from public interactions.
1. Indeed, the chamber's bylaws "provide that its mission includes promoting the interests of Boston's businesses." Greater Boston Chamber of Commerce v. City of Boston, 772 F. Supp. 696, 699 (D. Mass. 1991).
2. The Chamber of Commerce website information on the president Thomas Donohue states that "[s]ince assuming his position in 1997, Donohue has built the Chamber into a lobbying and political powerhouse with expanded influence across the globe." See http://www.uschamber.com/about/management/thomas-j-donohue (last accessed July 6, 2011).
4. According to the Institute for Legal Reform website, it "is a national campaign, representing the nation's business community, with the critical mission of making America's legal system simpler, fairer and faster for everyone." Among its goals, it seeks to `neutralize plaintiff trial lawyers' excessive influence over the legal and political systems." See http://www.instituteforlegalreform.org/about-ilr.html (last accessed July 6, 2011). We point this out solely to note that the ILR takes a strong advocacy position on the more contested issue of how to achieve a shared goal of making the American legal system simpler, fairer and faster.
5. In CJE Opinion 98-2, the committee opined that Canon 2 (B) prohibited a judge from receiving an award from "a private association that represents many alcohol and drug service providers." The organization in that case was a "'trade association representing providers of alcoholism and drug abuse services in Massachusetts.' The association conduct[ed] 'aggressive lobbying' of state and federal government agencies to establish policy and obtain funding for substance abuse treatment providers. This organization also offer[ed] educational and other support services to member organizations."