CJE Opinion No. 2004-8
Serving as Judicial Trustee for Massachusetts Bar Foundation
July 21, 2004
CJE Opinion No. 2004-8
You have requested an advisory opinion regarding your activities as judicial trustees of the Massachusetts Bar Foundation (MBF). Your questions are prompted by the recent changes to the Code of Judicial Conduct with respect to extrajudicial activities. Because, in the words of your request, "the work of the MBF is of such vital importance to the administration of justice and to promoting equitable access to justice for all residents of Massachusetts, [you] would like the Committee's opinion in order that [you] may participate in this organization to the full extent permissible under the Code."
Statement of facts. The following facts were presented as the basis for your request. Founded in 1964, the MBF is celebrating its fortieth anniversary. Although it was established as the philanthropic partner of the Massachusetts Bar Association, it is independently organized as a charitable corporation and is separately governed. The MBF qualifies for treatment under Section 501 (c) (3) of the Internal Revenue Code.
As described in its mission statement, the MBF "represents the commitment of the lawyers and judges of Massachusetts to improve the administration of justice, to promote an understanding of the law, and to ensure equal access to the legal system for all residents of the Commonwealth, particularly those most vulnerable." To that end, the MBF's primary activity is grant-making on a statewide basis. It is the designated conduit for the distribution of twenty-six per cent of Massachusetts IOLTA (Interest On Lawyers' Trust Accounts) revenues and also makes grants from other sources of funds. In addition, because selection of members (Fellows) is by invitation and considered to be an honor, another function of the MBF is to recognize achievement in the legal profession.
Currently there are more than 1,400 MBF Fellows, including a significant number of judges. All Fellows are members of the Massachusetts bar. At any given time, the number of Fellows is limited to five per cent of the licensed attorneys in Massachusetts. Selection is based on qualities such as professional leadership and demonstrated commitment to the MBF's mission. Typically, a member of the board of trustees or another Fellow will nominate a particular individual. The nomination is then discussed and voted on by the entire board.
On acceptance of their election, new Fellows pledge to contribute $1,500 payable over no more than six years, and are given the opportunity (but are not required) to participate in MBF governance, fundraising, and the annual grant-making process. After fulfilling this $1,500 pledge, the Fellow is designated a Life Fellow. Life Fellows are encouraged to take a leadership role in the MBF and are given the opportunity to show even greater commitment by becoming Lead Fellows. Lead Fellows are those who pledge to a higher level of giving. Oliver Wendell Holmes Fellows are individuals who have pledged a total of $5,000 to the MBF (including the initial $1,500); Louis D. Brandeis Fellows are those who have pledged $2,500. Some Massachusetts attorneys contribute to the MBF without becoming Fellows.
The MBF has three primary sources of money for its grants: IOLTA revenues, money collected in fulfillment of pledges from its Fellows, and money that has been donated and placed in certain restricted and unrestricted funds. Non-IOLTA monies are referred to as the MBF endowment. The MBF currently uses U.S. Trust Company to manage its investments, subject to the oversight of the board of trustees. IOLTA monies are only invested in government-backed fixed income securities and money market funds. Endowment monies are invested in fixed income securities, equity securities, and money market funds.
At this time, IOLTA revenues are by far the principal source of grant money. Because the flow of revenue from the IOLTA program can be uneven, the MBF is committed to building its endowment so that it can sustain a steady level of grant-making if and when IOLTA revenues drop off. Raising money by electing new Fellows and encouraging existing Life Fellows to become Lead Fellows is a component of this goal.
The MBF's IOLTA grants program is a critically important part of its work. Each year, the MBF awards more than one hundred grants to nonprofit organizations in Massachusetts, whose programs either provide civil legal services to the state's low income population or improve the administration of justice. IOLTA grants enable recipient organizations to provide legal assistance in a variety of areas, such as immigration status, domestic violence, housing, and access to the justice system. These grants also support programs that directly assist the court system, such as lawyer for the day programs, initiatives designed to assist pro se litigants, and mediation and conciliation programs.
By far the largest recipient of IOLTA funds is the Flaschner Judicial Institute. For more than fifteen years, the MBF has awarded Flaschner substantial grants that provide critical operating funds. Flaschner is the only entity to which the MBF makes a multiple year commitment.
The MBF uses non-IOLTA endowment monies to foster careers and volunteerism in public interest law. For example, one of the MBF's funds provides fellowships to outstanding law students for volunteer internships at nonprofit organizations providing civil legal services to indigent clients across the state. These internships often lead to a career in public service. The MBF also uses endowment monies to provide an annual grant to the winners of the Massachusetts Bar Association's annual high school mock trial program, to assist them with the expenses they incur in traveling to the national finals.
Pursuant to the MBF's bylaws, four members of the approximately twenty-member board of trustees are required to be judges. In general, MBF trustees are called on to perform the following functions: oversee personnel (including the hiring, evaluation, and termination of the executive director); participate in the adoption of investment policies and review the performance of the MBF's investment advisors; approve the annual budget and review the audit process; nominate, evaluate, and vote on potential Fellows; establish policies and priorities for grant-making; and vote on grants. Trustees often chair or serve on grant advisory committees, the first line of review of applications for IOLTA grants. All trustees participate in the final IOLTA grant decisions that are made each June, as well as the smaller grants that are made throughout the year from endowment funds.
Judicial trustees have a long history as leaders and integral members of the MBF's board of trustees. Over a dozen members of the Massachusetts judiciary have served as judicial trustees. Because the MBF is an organization devoted to the improvement of the law, the legal system, and the administration of justice, it was assumed prior to the most recent amendment to Canon 4 that it was permissible for judicial trustees to perform essentially all trustee functions. As stated in your request for advice, it was always assumed that this was of benefit to both the MBF and the judiciary, because the active participation of judicial trustees not only brought an important perspective to bear on the issues before the board, but also enhanced the perception among the public and the bar that judges, as well as lawyers, take seriously the obligation of all members of the legal profession to provide pro bono publico services as urged by Rule 3:07 of the Massachusetts Rules of Professional Conduct.
The October, 2003 changes to the Massachusetts Code of Judicial Conduct raise a question whether the MBF's judicial trustees are now restricted from performing some of the trustee functions described above. The judges requesting this opinion are cognizant of the general prohibitions of the revised Canon 4 -- that judges may not participate in the management and investment of the organization's funds, assist in planning fundraising, or personally participate in the solicitation of funds (except by soliciting funds from other judges over whom the judge has no supervisory or appellate authority), as well as the general prohibition in Canon 2 that judges may not lend the prestige of judicial office to advance the private interests of others. This request seeks clarification from the committee on a series of specific questions, set out below, about participation in the IOLTA grant-making activities, membership development, participation in the Fellows program, general leadership that intersects with fundraising, and their public affiliation with the MBF.
Finally, you state in your request that were it not for the important role MBF plays in providing access to civil legal services and advancing the administration of justice -- issues of fundamental concern to judges and lawyers alike -- one might err on the side of caution and substantially restrict participation on the board. The crucial mission of the MBF is the impetus for this request for an opinion, lest judges unduly isolate themselves from contributing their perspective, enthusiasm, and hard work to these important endeavors.
Analysis. Canon 4 provides that "a judge shall so conduct the judge's extrajudicial activities as to minimize the risk of conflict with judicial obligations." Section 4 C (3) addresses a judge's involvement with organizations intended to improve the administration of justice:
|"A judge may serve as an officer, director, trustee, or non-legal advisor of an organization or agency devoted to the improvement of the law, the legal system, or the administration of justice; or of any educational, religious, charitable, fraternal, or civic organization that is not conducted for profit or for the economic or political advantage of its members, subject to the following limitations and the other requirements of this Code."|
The two limitations restrict a judge's contribution to or membership in an organization (except a religious organization) that will be engaged frequently in litigation in the court on which the judge serves, and prohibits serving as an officer, director, and the like if the organization will be engaged in proceedings that would come before the judge or will be engaged frequently in adversary proceedings in any court. Of more specific concern are the provisions of Section 4 C (3) (b):
| "A judge as an officer, director, trustee, non-legal advisor, or member of an organization described in Section 4 C (3) or in any other capacity as to such an organization: |
This provision is substantially more detailed and more restrictive than the cognate provision in the prior version of the Massachusetts Code of Judicial Conduct. (1)
The Massachusetts Bar Foundation is an organization devoted to improving the administration of justice, promoting an understanding of the law, and ensuring equal access to the legal system for all residents of Massachusetts, particularly the most vulnerable. The MBF takes no advocacy positions beyond the constitutionality of its own activities and is an infrequent litigant before the courts.(2) Consequently, serving as judicial trustees does not per se violate the Code of Judical Conduct. The eight specific questions seek guidance on whether judicial trustees must recuse themselves from participation in specific duties of their role.
|1. May judges participate in IOLTA and non-IOLTA grant-making activities as described above, including grant-making to programs that serve the courts and Flaschner?|
Section 4 C (3) (b) (ii) expressly provides that judges "may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice." The programs served by the MBF have the direct nexus to the work of the courts that we have previously required in our interpretation of the phrase "the law, the legal system, or the administration of justice." See CJE Opinion 2003-16 (interpreting same language in Section 4 C ); CJE Opinion 2003-13 (same); CJE Opinion 98-13 (interpreting same language in Canon 5 G of old Code). While Section 4 C (3) (b) (ii) uses the phrase "make recommendations to," rather than the more active status involved in being a voting trustee, the rationale behind this rule indicates that a judge's trustee role on the MBF is permissible. The text of the rule acknowledges the validity of having both the judge's judgment and public knowledge of that judgment as part of the grant-making process. Consequently, the judge's participation in the grant-making activities falls directly within Section 4 C (3) (b) (ii) and is allowed.
|2. May judges participate in discussions or votes regarding membership development?|
|3. May judges nominate and vote on new Fellows, who thereby will receive recognition as leaders in the legal community and be invited to pledge money to the organization?|
|4. May judges participate in efforts to encourage Life Fellows to become Lead Fellows (including attending meetings sponsored by the MBF during which Fellows may be asked to become Lead Fellows or otherwise financially support the MBF)?|
Participation in membership development, nominating, and voting on new Fellows, and participation in efforts to encourage Life Fellows to become Lead Fellows raise substantially more questions under Section 4 C (3) (b) (i), which provides that a judge "shall not assist such an organization in planning fund-raising, and shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority."
Section 4 C (3) (b) (iii) further states that a judge "shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4 C (3) (b) (i), if the membership solicitation is essentially a fund-raising mechanism."
Based on these provisions of the Code, the specific task of participating in membership development of, and nominating and voting on, new Fellows, who thereby will receive recognition as leaders in the legal community and be invited to pledge money to the organization, is permitted by the Code of Judicial Conduct. New fellows are limited to five per cent of the legal community and must satisfy significant nonfinancial criteria, such as professional leadership and commitment to the MBF's mission to improve the administration of justice, promote an understanding of the law, and ensure equal access to the legal system. Consequently, selection as a Fellow is a significant recognition of achievement in the Massachusetts legal profession. Fellows are also given the opportunity to participate in MBF governance, fundraising, and annual grant-making processes. By requiring Fellows to contribute $1,500 over six years, the Fellows program also serves as a fundraising mechanism. The language of the Code prohibits participation in membership solicitation "if the membership solicitation is essentially a fund-raising mechanism." The word "essentially" emphasizes a dominant or core fundraising purpose. A narrow application of the Code indicates that the dual function of the MBF fellows program renders it not "essentially" a fundraising mechanism. Consequently, it would be appropriate for a judicial trustee to participate in the discussions or votes regarding membership development and nominate and vote upon new Fellows; under the Code, however, a judge would be precluded from personal involvement in the solicitation of funds from the Fellows who are attorneys.
The facts as presented indicate that membership development, particularly of the Lead Fellows, is an integral part of the MBF's fundraising strategy. Participation in discussion and votes concerning membership development policy with respect to Lead Fellows, and participation in efforts to encourage Life Fellows to become Lead Fellows, are so intertwined with the fundraising activities that there appears to be no textual basis under the Code to allow such activities. Since Life Fellows have already received the important public acknowledgment of their leadership in the Massachusetts bar by their invitation to become Fellows, the additional designation as "Lead Fellow" is solely for fundraising purposes and carries no additional public weight or acknowledgment of public service beyond the, albeit important, willingness to contribute to the financial goals of the MBF. Consequently, the move from Life to Lead Fellow is "essentially a fund-raising mechanism." While we can acknowledge the important work of the MBF and the value of a judicial participation, the language of the current Code precludes such intimate involvement in this critical part of the MBF's fundraising goals.
Under the exception contained in Section 4 C (3) (b) (i), a judge is allowed to "solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority." Consequently, a judge would be allowed to solicit judges over whom they do not have supervisory or appellate authority to become Fellows and to move to Lead Fellow status.
|5. May judges participate in the general oversight of the organization including budgeting, hiring, and oversight of personnel, when doing so indirectly may involve discussion and consideration of fundraising initiatives and responsibilities, membership development, and investment management?|
Nothing in the Code prohibits participation in the general oversight of the organization, including budgeting, hiring, and oversight of personnel. While such discussions indirectly impact fundraising initiatives and responsibilities, membership development, and investment management, participation is still allowed up to the point at which the judge is directly involved in "the management and investment of the organization's funds, . . . planning fund-raising," and personal participation "in the solicitation of funds or other fund-raising activities." Section 4 C (3) (b) (i).
This line between participation in the general oversight of the organization and participation in fundraising requires a factually sensitive understanding of the goals behind the Canon 4 prohibitions. The Commentary to Section 4 C (3) (b) notes that "[s]olicitation of funds for an organization and solicitation of memberships involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control." The generalized prohibition on involvement with fundraising appears to serve as a prophylactic rule to assure that judges do not place themselves in situations in which their involvement will be seen as a judicial pressure to participate financially in the organization's goals. See generally J.H. Shaman, S. Lubet & J.J. Alfini, Judicial Conduct and Ethics §9.06 (3d ed. 2000) (interpreting the somewhat more permissive Model Code of Judicial Conduct, advisory opinions from ethics committees around the country evince strong consensus in favor of a strict interpretation of the anti-solicitation rule).
Service on a nonprofit board of directors inevitably involves board members in discussions that implicate fundraising. There is nothing in the text or comments to the Massachusetts Code that indicates that serving on the board or as a trustee of an organization devoted to improvement of the law, the legal system, or the administration of justice should be disfavored. A broad interpretation of Section 4 C (3) would essentially preclude judges from participating on boards. Consequently, we embrace a more contextual, albeit fact sensitive, interpretation. A judge may participate in general discussions about the direction of the institution, even though such discussions may implicate fundraising. A judge should recuse himself or herself from discussions on the development and implementation of fundraising plans. Absent additional guidance on the intent behind Section 4 C (3), this interpretation offers the best balance between prohibiting fundraising and avoiding a "[c]omplete separation of a judge from extra-judicial activities," which would be "neither possible nor wise." Commentary to Section 4 A.
|6. May judges voluntarily appear or be profiled in the MBF newsletter?|
Participation in the public face and outreach of the MBF raises questions under Canon 4 and Section 2 B, which prohibits a judge from lending the prestige of judicial office to advance the "private interests of the judge or others."
The prohibition on personal participation in fundraising contained in Canon 4 again is the first step in determining what activities are allowable under the Massachusetts Code. Assuming that the MBF newsletter, like many organizational newsletters, is primarily an informational vehicle to inform recipients of how members of the bar and the judiciary fulfill the mission of the MBF, appearing or being profiled in the MBF newsletter would be allowed.
Assuming a core informational function of the newsletter, participation also does not constitute lending the prestige of the judicial office for the private interests of the judge or others. Cf. CJE Opinion 2003-18 (participating in interview for book on ethnic communities within city would not convey the message that prestige of judicial office is being used to advance private or commercial interests; judge must take appropriate steps to assure that judge's participation does not involve improper judicial endorsement). A judge profiled in the MBF newsletter must, however, take appropriate steps not to convey the impression that other Fellows are in a special position to influence him or her. See CJE Opinion 2004-3.
|7. May judges be included in lists of Fellows or Lead Fellows made publicly available by the MBF in its literature and on its website?|
As noted above, the designation of "Fellows" includes a nonfinancial recognition. As such, judges may be included in the list of Fellows even though designation also indicates the financial commitment of the recipient. See generally CJE Opinion 99-6 (serving as trustee of Supreme Judicial Court Historical Society permitted; inclusion of reference to gifts in larger annual report does not render report a document used exclusively for fundraising purposes).
Including judges in the list of Lead Fellows, however, would inappropriately lend the prestige of the judicial office to the MBF fundraising efforts. This committee's opinions have historically expressed concern about the "selective emphasis" of the judge's name and office. See, e.g., CJE Opinion 2000-9. Publicly identifying judges as Lead Fellows runs the risk that lawyers would feel pressure to join the ranks of Lead Fellows to raise their status in the eyes of the judges who already hold that status. As we have noted, "a judge should avoid giving ground for any reasonable suspicion that the judge is utilizing the power and prestige of the office to persuade others to contribute to a charitable or civic enterprise." CJE Opinion 89-1. See also CJE Opinion 2003-7 (the fact of contribution by judge could not be publicized). As such, listing of names of judges as Lead Fellows would be prohibited.
|8. May judges' names appear on MBF letterhead for any purpose?|
In CJE Opinion 99-6 we concluded that a judge could serve on the board of overseers of the Supreme Judicial Court Historical Society, but carefully admonished that while a judge's name "may appear on the letterhead and literature generally used by [Canon 4 (C)] entities, it should not appear on letters and other materials used exclusively for fund-raising" (quoting CJE Opinion 95-4). See also CJE Opinion 91-3 (judge who serves on community advisory board of a nonprofit hospital should not permit his or her name to be included on stationery used in fundraising, nor in any way permit a "selective emphasis" of judge's name and office, citing S. Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges, p. 31). See Commentary to Section 4 C (3) (b) ("Use of an organization letterhead listing a judge's name for fund-raising or membership solicitation violates Section 4 C  [b]"). Consequently, while judges' names may be included on the general purpose MBF letterhead, they may not be included on letterhead used exclusively for fundraising purposes.
Conclusion. In conclusion, judicial trustees for the Massachusetts Bar Foundation may continue to serve in that function if they limit their involvement to non-fundraising activities as discussed in this opinion.
1. In the prior version of the Code, effective until September 1, 2003, Canon 4 (C) provided that a judge "may serve as member, officer, or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice. He may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. He 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."
2. The Massachusetts Bar Foundation was a litigant in a challenge to the constitutionality of its own activities. See Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962 (1st Cir. 1993). It has also submitted amicus briefs in litigation on the constitutionality of the IOLTA system. Except for these activities, it does not appear to take any active stance in litigation.