Accepting pro bono representation

March 26, 2013

CJE Opinion No. 2013-1

You are an associate justice of the Trial Court, and you have requested an opinion from the Committee as to the propriety of an attorney representing you before the Commission on Judicial Conduct ("CJC") on a pro bono basis.  You frame the question as follows: "[I]s [the attorney] permitted to provide, and [are] [you] permitted to accept, pro bono representation before the Commission on Judicial Conduct?"  The Committee cannot answer the first half of your inquiry because it concerns the conduct of your attorney, thus it limits its decision to the second half of your inquiry.  

I.  Facts

You are currently the subject of a CJC inquiry, and you have asked a particular attorney ("Attorney") to represent you in the matter.  For many years, the Attorney has represented attorneys before the Board of Bar Overseers, and he has represented judges before the CJC and before the Supreme Judicial Court.  While he represents the attorneys on a pro bono basis, he charges the judges he represents at a reduced rate, and then contributes his fees to a charity of either his or the judge's choice.

Given the recent publicity about a matter before the CJC, the Attorney is concerned that he or the judges he represents may be violating their respective ethical rules and/or the State Ethics Law.  In a January, 2013 letter, the Attorney sought an opinion from the Massachusetts Bar Association Committee on Professional Ethics ("MBA"), asking:  "In the representation of a judge in a Commission on Judicial Conduct investigation, may [he] provide those services pro bono without any requirement of a payment of fee or a charitable contribution?"  The MBA responded with a February, 2013 letter citing Rule 8.4(f) of the Rules of Professional Conduct which prohibits an attorney from assisting a judge in conduct that is a violation of judicial conduct rules or other law.  The MBA reasoned that the propriety of an attorney's pro bono representation of a judge therefore depends on whether the judge has violated the law.  As the MBA does not have the authority to provide opinions concerning judicial ethics or substantive law, the MBA recommended that the Attorney and his judge-client request an opinion from this Committee.  

In your letter, you also describe your relationship with the Attorney, whom you have known for almost thirty years.  About twenty-five years ago, you worked at the firm where the Attorney is currently a named partner; you never worked directly with the Attorney.  The Attorney has never appeared before you.  In fact, he has only appeared in your department of the Trial Court on one occasion, and he has no intention of doing so again.  If the Attorney or his firm did appear in any matter before you, however, you state that you would recuse yourself.

II. Analysis

Your receipt of pro bono representation from the Attorney constitutes a gift.  See, e.g.,CJE Opinion 94-2 (concluding that discounted bill for legal services to judge was a gift).  The Code permits a judge or members of his family to accept gifts, bequests, favors, or loans from anyone as long as "the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value exceeds $350.00, the judge reports it in the same manner as the judge reports compensation in Section 4H."  Section 4D(5)(h); see Commentary to Section 4D(5)(h) (providing that this section "also prohibits gifts, bequests, favors, or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge").  This obligation is consistent with the broader obligations set forth in Canon 2 requiring the judge to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary[,]" Section 2A,and not to "allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment."  Section 2B.

Under the provisions of the pre-2003 Code, the Committee addressed a similar inquiry. There, the issue was "the propriety of paying a discounted bill for legal services provided by a close personal friend" where those legal services "arose from a claim against [the judge] in the course of [his] legal practice prior to [his] appointment to the bench."  CJE Opinion 94-2.  After considering the language in the predecessors to Section 2A, Section 2B, and Section 4D(5)(h), the Committee concluded that, in order "[t]o preserve the integrity of the judiciary, a judge may not accept discounted services from an attorney whose interests have come or are likely to come before him."  Id.  The Committee therefore instructed the judge that, "[i]f the attorney in question were likely to appear before [him], [he] could not accept the discounted legal service bill without violating the provisions of [the predecessor of Sections 2A and 2B]."  Id.

The Committee further instructed the judge that merely recusing himself whenever that attorney appeared before him would not bring him into compliance with the predecessors to Sections 2A, 2B, or 4D(5)(h) because the clear language of these provisions "establishes that if the gift-giver regularly appears in front of [the judge], [he] may not accept the gift."  Id.  "If, however, for an independent reason, the gift-giver has previously established a practice of never appearing before [the judge], . . . the [predecessor provisions] do not prohibit [the judge's] receiving the gift" as long as he reported it in accordance with the Code.  Id.; see, e.g., CJE Opinion 2002-20 (characterizing free surveillance services as a gift, Committee concluded that judge could accept those free services from long-standing personal friend where "[n]either the friend nor his company has ever [or would ever] come before [the judge]").

The analysis in CJE Opinion 94-2 governs your situation because the legal services you receive constitute a gift, whether the Attorney represents you at a discounted rate or pro bono. Therefore, as long as the Attorney has not appeared before you and is not likely to appear before you, you may accept his services.  You have stated that, although you have known the Attorney for almost thirty years and worked at the same firm as the Attorney for a short time about twenty-five years ago, the Attorney has never appeared before you.  He has appeared in your department of the Trial Court once, but he has no intention of ever doing so again.  Just as in CJE Opinion 94-2, then, you may accept the gift of free legal services from the Attorney.

III. Conclusion

The Committee characterizes a judge's receipt of free legal services as a gift.  Your acceptance of free legal representation from the Attorney does not violate the Code because the Attorney has not ever and likely will never appear before you.  Your acceptance under these circumstances is also consistent with your broader obligations to promote public confidence in the integrity and impartiality of the judiciary and not to allow relationships to influence your judicial conduct or judgment.