CJE Opinion No. 90-1
Use of Biographical Material of Judge in Former Firm's Brochure
February 27, 1990
CJE Opinion No. 90-1
You have requested the advice of this committee concerning a letter from your former law firm notifying you that the firm proposes to include biographical information about you in a brochure that the firm is preparing for distribution to the firm's clients and prospective clients. The circumstances that you describe are generally as follows.
The brochure will state (in very general terms) the types of legal work done by the firm and will identify categories of clients. The brochure will contain biographical data about the partners and associates in the firm and will describe their respective specialties. The firm also wishes to include in the brochure an introductory paragraph, historical in nature, describing the founding of the firm in the early 1900s and mentioning by name several former partners of the firm who achieved prominence in legal practice or in public life. The brochure is intended to serve an information and, however tasteful and restrained, an advertising purpose. The firm, while not in terms asking for permission from you to include your name and judicial position in that selective listing, has made clear that they will not do so if you should object.
You ask whether permitting your name and position to be included in the list, albeit passively (i.e., by not objecting), would run afoul of Canon 2(B) of the Code of Judicial Conduct (S.J.C. Rule 3:09), which, in relevant part, states:
A judge . . . should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.
It could be argued that the brochure's mention of your prior association with the firm and your present judicial office, doubtless motivated in large part by justifiable pride in your achievement and your public service, should be exempted from scrutiny under Canon 2(B) because it is restricted to simple and truthful statements of historical fact. Nevertheless, it is clear that the brochure is intended to advance the interests of your former law firm, and it is difficult to escape the conclusion that the prestige of your office would be subtly employed to that end. To some readers (clients and prospective clients, as opposed to members of the bar) the brochure might contain the message that the firm is influential because of its special (albeit former) association with a high-ranking member of the Commonwealth's judiciary. Thus the brochure, in however attenuated a form, does implicate the concerns about influence-wielding that are a principal focus of Canon 2(B). A factor considered in reaching this conclusion is the brochure's selective emphasis of your name and office. Compare Federal Advisory Committee on Judicial Activities Advisory Opinion No. 35 (1974)(permitting a judge's name to appear together with other member of a charity's board of trustees on stationery used for fund-raising, so long as the judge's name was not "selectively emphasized.").
The canons, of course, and the question you pose, are concerned not with the actions of the law firm, which may be constitutionally protected under the principles enunciated in Bates v. State Bar of Arizona, 433 U.S. 350, 383-384 (1977), and Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638 (1985), but rather with your own responsibilities in connection therewith. The first branch of the canon prohibits "lend[ing] the prestige of [your] office" to the law firm, which in normal usage might suggest an affirmative act on your part giving permission to the law firm to use your name and office in the brochure. Under this branch the situation presented is factually borderline: the law firm seems to have given you the opportunity to object, with the implication that any objection would be honored, but not to have asked specifically for your permission. The other branch of the canon employs a formulation that may suggest an affirmative obligation to act. The judge, it says, "should not . . . permit others to convey the impression that they are in a special position to influence him." Similar language in Canon 5(B)(2) ("A judge should not . . . permit the use of the prestige of his office. . . .") was held in Advisory Opinion 89-3 to impose an affirmative obligation on the part of a judge to disassociate herself publicly from a college fund-raising event advertised as being in honor of her and other graduates of the college who had become judges. To the same effect see Thode, Reporter's Notes to Code of Judicial Conduct (American Bar Association 1973) at 49 ("A judge should not use or appear to use the prestige of his office on behalf of a private venture of another person, nor should he convey the appearance that certain individuals are in a special position to influence him. . . . A judge is also required, when he has knowledge of the conduct, to take action to stop an 'influence peddler' - the lawyer or other person who tries to capitalize on the claim that he has special influence with the judge.")
It is therefore our conclusion that you have an obligation under Canon 2(B) at least to notify the members of your former law firm that you object to the use of your name and office in the proposed brochure, in its present format. Because it seems clear from the firm's letter to you that your objection will be honored, it is not necessary at this time to determine whether the canon imposes on you any further duty beyond advising the firm of that objection.