CJE Opinion No. 2002-07
Accepting Artwork for Display in Courthouse
CJE Opinion No. 2002-07
April 2, 2002
Art in the Courthouse Project:
You indicate that a group of local artists and courthouse personnel are involved in a project to obtain works of art to be donated to your court for display therein. The courthouse in which you sit is an unpleasant setting, especially for litigants whose cases involve strong emotion and high conflict. You and the group have been trying to improve the physical setting on a bare bones budget. The artists seek places to display their art, including public venues, and they are asking to show their work in the courthouse. It is not entirely clear whether the artwork is to be "on loan" from the artist or to become the property of the court. In either event, presumably the artist would be given public recognition for the donation, whether temporary or permanent. It is not clear whether there would be any publicity in the courthouse about the donor artists or whether the works of art would be available for sale.
The group has become a committee of the county bar association, which supports its efforts. Funds raised by the committee would remain in the custody of the bar association and not come to the court. Your inquiry does not indicate why funds would need to be raised.
With the foregoing factual background, you ask the following questions:
1. Does the bar association fit within the definition of "professional organization" as set forth in footnote 1 of CJE Opinion No. 89-1, and does this model meet the ethical standards described in that opinion?
2. May you be involved with the committee to:
(A) Set policy for the acceptance of the donations and/or display of artwork?
(B) Select pieces appropriate to display in the court?
(C) Appear at and welcome people to a fund-raising event which the committee may hold at some time in the future?
Your inquiry refers to Opinion 89-1 in which this Committee advised that a judge ought not accept a proposal by a private company which sought to adorn the walls of a district courthouse with flags which the company would obtain by solicitation to law firms and businesses in the area. Participating attorneys and businesses would be recognized by a plaque next to their donated flag on the courthouse walls. The Opinion warned that several Canons in the Code of Judicial Conduct were implicated, including Canon 2(B) which states that a judge should not "convey or permit the impression that . . . [others] are in a special position to influence him." Canon 4 permits a judge to engage in activities to improve the administration of justice if in doing so the judge "does not cast doubt on his capacity to decide impartially any issue that may come before him."
In Opinion 89-1, this Committee advised that:
"the presence of the plaques . . . in the public hall of the Court may create a public impression that certain attorneys, firms or area businesses stand in the favor of the Court. In cases in which the donor is a party or an attorney, the Court's appearance of neutrality and impartiality will be compromised regardless of the actual feelings of the judge."
You ask whether the footnote to Opinion 89-1 would render a different result in your situation. The footnote says: "Such an appearance of partiality could possibly be ameliorated if the contemplated donor were a broadly based civic, charitable, or even professional organization which was unlikely to appear as a party before your Court."
As described by you, the group which has become a committee of the bar association is comprised of local artists and court personnel. While the bar association is a broadly based professional organization, its membership consists of attorneys who regularly appear before you. Since the new committee, although supported in its efforts by the bar association, is comprised of the artists and members of your staff, this Committee is of the opinion that it would come within the type of organization contemplated in the footnote to Opinion 89-1, that is, the artists represent a broadly based civic organization whose members are unlikely to come before you as a party in your court.
Accordingly, this Committee believes that the group may be involved in a project to donate or loan works of art for the beautification of the courthouse, without implicating the proscriptions in Canon 2(B), which prohibit the conveying of an impression that the group is in a special position to influence the judge.
A. The Committee is of the opinion that you may participate in the work of the group, setting policy for the acceptance of donated artwork and determining how it is to be displayed.
B. Participating in the choice of particular works is a little more problematic. This Committee foresees the possibility of potential problems relative to the content of particular works and that you may become embroiled in an artistic controversy. Moreover, we caution you that service on the committee may produce such a close relationship between you and a lawyer that you, applying the two-part test spelled out in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), might have to step aside in a particular proceeding or series of proceedings. That said, however, the Canons do not flatly prohibit your participation in the selection of specific works of art to hang in the corridors.
C. As to your involvement with the group itself, Canon 4(A) permits a judge to: "speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice." Broadly speaking, the work of the group seeks to improve the surroundings of the courthouse for litigants and court personnel. Accordingly, this Committee believes that you could participate in the setting of policy for the selection of the artwork in your courthouse.
The third part of your question asks whether you may appear at and welcome people to a fund-raising event which the committee may hold. You do not indicate where such a fund-raiser would take place, i.e. whether it would be like a "gallery opening" within the courthouse itself, or whether it would be offsite.
Canon 5(B) states that a judge "should not solicit funds for any . . . civic . . . organization or use or permit the use of the prestige of the office for that purpose."
Canon 4(C) provides that a judge may make recommendations to public and private fund granting agencies on projects and programs concerning the law, the legal system, and the administration of justice. While the art in the courthouse project may, in the broadest sense, be related to the administration of justice, as you indicate it might make the surroundings less hostile for the litigants, nevertheless, the Canon makes clear that you should not personally participate in fund-raising activities even for an effort which concerns the law, the legal system, or the administration of justice. Nor should you lend the prestige of your office to fund-raising for such a group or event.
In summation, the Committee believes that a committee of the local bar association could hang artwork on the walls of the courthouse, provided that there were no advertising of the art beyond identifying its creator, nor any indication that the works of art were for sale; that you may participate with the committee to develop a policy for the court as to what should be displayed and details incident thereto and may participate in selecting specific works; and that, in light of Canon 5(B)(2), you may attend but not actively participate in nor welcome people nor be the guest of honor at any fund-raiser designed to support the artwork project.
You indicate that you are involved in the preparation of written materials to assist pro se litigants appearing in your court and you have learned that a significant number of such litigants may be illiterate and unable to benefit from written materials. You wish to create some videotapes with the assistance of students from the film department of a local college. You raise a series of six questions, some of which are interrelated.
In Questions 1 and 2, you ask whether you may appear in each video to introduce it and/or play a central role in the video, i.e. acting the part of the judge in the courtroom. Questions 3 and 4 ask whether local attorneys may have prominent roles in the video as actors or narrators; and, if that poses an ethical problem, would it be solved by filming the lawyers only from the back and not naming them in the credits. Finally, Questions 5 and 6 ask whether your court mediators may play roles as mediators or litigants; and, if that poses ethical problems, would it be solved by using actors from mediation programs that do not provide mediation services to your court under the Supreme Judicial Court Uniform Rules on Dispute Resolution.
Your first and second inquiries implicate Canon 4 which provides that a judge may engage in activities to improve the law, the legal system and the administration of justice. Canon 4(A), as noted earlier, specifies that the judge may: "speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice."
The Committee believes that your introducing and appearing in the videos, acting the part of the judge, are fully consonant with Canon 4. Indeed the Chief Justices of the Supreme Judicial Court have traditionally appeared in the instructional videos shown to jurors every day in the courts of this Commonwealth.
Your next question asks whether local attorneys (presumably lawyers who appear before you regularly) may be featured in the videos and whether they should be recognizable or given a credit at the end of the film. These questions implicate Canon 2(B) which states that a judge should not "convey or permit the impression that (they) are in a special position to influence him." Canon 4 permits the judge to engage in activities to improve the administration of justice if in doing so the judge "does not cast doubt on his capacity to decide impartially any issue that may come before him."
To the extent that any local attorney would be recognizable in the film or given a credit, that may give the impression that that particular attorney is in a "special position to influence" the judge. This is particularly so where the video is being prepared for unrepresented litigants. The attorneys in the video could conceivably represent the pro se's opponent in court. The Committee is mindful that experienced attorneys may be particularly well suited to act out the roles in court, thus making the educational materials more realistic and helpful to their intended audience. Therefore, it is the Committee's belief that you may feature attorneys in the films, provided that either they are not identifiable or they are attorneys who rarely, if at all, practice in your court. In either case, the attorneys should not be included in any film credits.
Similarly, questions 5 and 6 ask if mediators may have prominent roles in the films. Presumably, the mediators would be as prominently displayed on the videos as a judge would be so they would be identifiable. Therefore, in order to avoid the impression that the mediators who work in your court are in a special position to receive judicial favor, your suggestion of using outside mediators as actors should obviate any appearance of your mediators being specially favored.