Serving as Mass. Bar Section Chair

July 29, 1997

CJE Opinion No. 97-7

You have requested an opinion of this committee on the applicability of the Code of Judicial Conduct to your acceptance of an invitation to serve as a section chair of the Massachusetts Bar Association. Attached to your request was the "job description" for section chairs.

Your letter identifies and discusses several problem areas for a judge serving in this capacity. We find the problems cumulatively insurmountable and advise against your acceptance of the appointment.

You cite "the role of chair as a spokesperson for the bar association in connection with matters that may be before a court, the Legislature or that may otherwise be considered in the realm of politics such that the impartiality and integrity of the judiciary could be adversely affected." We think this concern, grounded in Canons 1 and 2, is well founded and that the problem is so inherent to the union of the roles of judge and section chair as to require frequent and continuous designations of an alternative spokesperson.

You also cite as an area of concern the handling of policy questions which come before a section for consideration and recommendation. Although, as you state, the MBA may not require the chair or the section to vote on any matters, it appears that the members of the section could choose to vote on and make recommendations on policy issues notwithstanding the chairperson's objection. On a related issue, assuming approval of the MBA Board of Delegates, the section could vote to file an amicus curiae brief. Notwithstanding any disclaimer on your part, such briefs, recommendations, or policy statements could be perceived by some as bearing the imprimatur of the section leadership.

 As section chair, it is expected that you will "actively promote the section among colleagues to recruit new members whenever possible and encourage active participation." Participation in the solicitation of membership by a judge is problematic when it involves individuals likely to appear before the court on which the judge serves. Compare (although it has not been adopted in Massachusetts), Canon 4C(3)(b)(iii) of the 1990 Model Code of Judicial Ethics (a judge shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive), and the accompanying commentary (a judge may not solicit persons for membership if either those persons or persons with whom they are affiliated are likely to appear before the court on which the judge serves).

As section chair, you are required to appoint "key section leaders". These individuals and other active members of the section are likely to appear before you, which may raise questions concerning the appearance of impartiality under Canon 3(C)1. See also West Virginia Advisory Opinion (October 7, 1994) (A judge may not serve as president of a bar association where some of the members of the association would be regularly engaged in adversarial proceedings coming before the judge.)

The series of conflicts, viewed cumulatively, between the role of judge and that of section chair indicate overwhelmingly that service by a judge in that capacity, however well intended to promote the improvement of the law, the legal system, and the administration of justice, is not compatible with the proper performance of his or her judicial duties. See the introductory language to Canon 4.