CJE Opinion No. 2001-12
Providing Judicial Administration Consulting Services
September 25, 2001
CJE Opinion No. 2001-12
You have inquired whether the Canons of Judicial Conduct prohibit you from accepting an offer from an organization, which is proposing to facilitate a USAID-funded project to review the causes of delay in the Indian judicial system and to suggest ways of improving its functioning. There may be projects in other countries as well. Your letter states, "If funded, [the organization] would contract with the USAID to provide judicial administration consulting services and business litigation reform proposals to the foreign judiciaries to make their host countries more attractive for American investment. I am informed that I would be paid the standard USAID hourly consulting fee, currently $150 hourly, for any work I perform on this effort." The letter from the organization states: "At no point will you be either employed by or be a consultant to [the organization]. [The organization] will not pay you any fees or expenses. In your capacity as an independent advisor to the project you will give counsel to USAID and to the foreign government which may pay you a reasonable consulting fee and reimbursement of expenses in accordance with their rules and regulations. I would appreciate it if you would let me know if it would be possible for you to be a member of such a team to work as an independent advisor for USAID or a foreign Government."
The relevant Canons of Judicial Conduct are Canons 4 and 5.
Canon 4 provides, in pertinent part:
"A judge, subject to the proper performance of his judicial duties, may engage in the following quasi-judicial activities, if in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him:
(A) He may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
(B) He may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice. . . ."
Canon 5(C)(2) provides that a judge may "engage in other remunerative activity permitted by Canon 4, but should not serve as an officer, director, manager, advisor, or employee of any business."
We are not able to give you a definitive answer with respect to your inquiry. Canon 5(C)(2) states that you may not serve as an "advisor or employee of any business." We do not have enough information to conclude whether you would be acting as an advisor or employee of the organization or whether it is a "business" as the Supreme Judicial Court and we have defined that term. (See In the Matter of Robert M. Ford, 404 Mass. 347 (1989) and this Committee's Opinion 98-7 for instances where a judge's service to a charity or non-profit corporation have been viewed as service to a business.) We understand that the letter states that you would not be a consultant to or employee of the organization, but your letter indicates that the organization would be the contracting party with USAID. Although we know nothing of the operations of the organization, it does seem to be something more than a headhunter for USAID and would seem to have some ongoing relation to this project. Whether you would fit the definition of "advisor" or "employee" of the organization within the meaning of Canon 5 and whether the organization is a "business" is a heavily fact-driven inquiry. Any response would need to be based on a full consideration of all the facts relating to the operations of the organization and the eventual nature of the work you would do in connection with its contract or contracts with USAID or foreign governments. The Committee cannot make these sorts of determinations in the abstract, but we think we have pointed out the factual issues that you need to resolve.
A second issue is the nature of the work that you would be doing. Canon 4(B) permits you to testify before an executive or legislative body or official on matters "concerning the law, the legal system, and the administration of justice," but it allows you to consult with an executive or legislative body or official "only on matters concerning the administration of justice." The purpose of the restriction seems to be to divorce judges from taking a stance outside of a formal hearing process on substantive legal outcomes and to restrict judges to consulting on matters of administration, which have a more neutral aspect. We assume that the organization's contract would be with a foreign executive. Presumptively, the Canons apply extraterritorially, and we see nothing in the fact situation you present to suggest reasons why such application is not appropriate here. Canon 4(B) prohibits consultation about the "law and legal system" but permits consultation about "the administration of justice." Consultation about litigation delays would normally seem to constitute consultation about "the administration of justice," defined as matters concerning the procedures of operating the justice system. We note, however, your statement that the interest of the organization is to promote reforms that would make the foreign judicial climate more attractive for American business. We are uncertain about the particulars of the agenda, if any, that is driving the proposed project, but the more the agenda is designed to advance the private interests of a particular group, the less it fits within the permitted consulting category of "the administration of justice."
We also note your statement about the times when you would perform this work - weekends, vacations, or unpaid administrative leave. Your concern is obviously with the requirement of Canon 4 that any permitted extrajudicial work should not interfere with the performance of judicial duties. That is an appropriate concern, and you will understand that we are not in a position to conclude whether your undertaking of any permitted extrajudicial work would interfere with the performance of judicial duties. That also would depend on the particular facts of your situation.
The last point we should mention is that we have addressed issues that implicate only the Canons of Judicial Conduct and not any questions of the permissibility, under other law of the Commonwealth, of a judge of the Commonwealth engaging in remunerative work for the federal government or a foreign government.