Appointment As Director of Non-Profit Corporation

October 9, 1990

CJE Opinion No. 90-4

You have requested an opinion of this committee on the applicability of the provisions of the Code of Judicial Conduct to your acceptance of an invitation to serve on the board of directors of a private non-profit corporation which provides residential and day treatment for pre-adolescent children with serious emotional difficulties and learning handicaps.

Canon 5(B)(1) provides, in part:

"A judge may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

"(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court."

In your request you state that you do not "envision many, if any instances wherein the . . . school would be a party or have a substantial interest in matters that [you] would ordinarily hear as a Probate Court judge."

We do not think that your statement exhausts the content of Canon 5(B)(1)'s reference to the likelihood that an organization "will be engaged in proceedings" that would ordinarily come before you. The Committee believes that you must also address the frequency of other instances where the Canon may be implicated -- viz., instances in which the school and members of its staff are called upon to provide evidence in matters that involve its students; instances in which the treatment provided by the organization is an issue in any respect; instances in which students in the school may be under court supervision, as in a guardianship; and other instances in which the school may be involved in court proceedings before you. Moreover, Canon 5(B)(1) also refers to adversary proceedings not just in your court but also to regular engagement "in any court."

If your assessment is that the organization is not engaged in such proceedings that would ordinarily come before your trial department and further that the organization is not regularly engaged in such adversary proceedings in any court, the Committee advises that you may serve as a director subject to the limitations of your activities imposed by Canon 5(B)(2) and (3) and other relevant provisions of the Code of Judicial Conduct.