CJE Opinion No. 98-8
Serving as Bar Association Treasurer; as Chair of Board of Editors
April 13, 1998
CJE Opinion No. 98-8
You have requested an opinion of this Committee on the applicability of the Massachusetts Code of Judicial Conduct to your service as:
1. the treasurer of a bar association; and
2. the chair of the board of editors of that bar association's publication.
Your duties as treasurer include those functions typically associated with the position of treasurer of a bar association, such as the preparation of a budget, supervision of disbursement of funds within the approved budget, collection of dues, and the filing of periodic financial reports. The Treasurer also serves as liaison to public service projects sponsored by the Association. As a member of the Council of the Association and its Executive Committee, you also attend monthly meetings that establish and review its major programs and policies. The Council also decides what positions the organization should take on legislative matters, although, as you suggest, you could abstain from participation in such matters if that presented a problem under the Code of Judicial Conduct.
Canon 4 provides, in part, as follows:
"A judge, subject to the proper performance of his judicial duties, may engage in the following quasi-judicial activities, if in so doing he does not cast doubt on his capacity to decide impartially any issue that may come before him . . . .
(C) He may serve as a member, officer, or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice."
Service as an officer or director of an organization described in Canon 4(C) is denominated as a "quasi-judicial" activity; it is permitted if the service does not cast doubt on the judge's impartiality on issues that may come before him or her. The inquiry raises two interrelated questions: is service as officer and director of the bar association of the sort that may fairly be described as a "quasi-judicial" activity, and if so, do the kinds of activities in which the organization engages raise questions about the impartiality of the judge who is an officer of the organization.
We have recently construed Canon 4 in responding to an inquiry based on facts similar to those you present. In our Opinion 97-7, we were faced with a request inquiring whether a judge might serve as section chair of a major bar association. We advised against acceptance of the appointment. In our view, the problems raised by acceptance were "cumulatively insurmountable." One problem was with 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 otherwise may be considered in the realm of politics such that the impartiality and integrity of the judiciary could be adversely affected." We thought that that "concern, grounded in Canons 1 and 2," was "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." In addition, briefs, recommendations, and policy statements approved by the section could be perceived as having the imprimatur of the section leadership, even if the chair declined to vote on a particular matter. Moreover, recruitment of membership and appointment of section leaders by the judge from among lawyers who might appear before that judge was also thought to raise questions. The totality of these circumstances led the Committee to conclude that although the judge's service might well promote improvement of the law, the legal system, and the administration of justice, it was not compatible with the proper performance of his or her judicial duties.
We have given a rather full discussion of our Opinion 97-7 because of its relevance and because it has not yet been made widely available. Your inquiry raises a broader issue than the one we considered in Opinion 97-7. If a bar association is an organization described in Canon 4(C), a conclusion that a judge may never be an officer would seem to use the opening condition in the Canon to swallow up the entire permission. The Reporter to the ABA Committee that produced the 1972 Model Code of Judicial Conduct, on which our rules are based, published a set of Notes after the model rules were adopted. In those Notes, he states that Canon 4(C) "specifically authorizes" judges to serve as officers of bar associations, but that they "must not, however, become involved in a way that casts doubt on [their] impartiality." Thode, Reporter's Notes to Code of Judicial Conduct, 76 (1973).
Whether the activities of bar associations generally might fairly have been characterized as quasi-judicial in 1972 when the model rules were drafted and whether service by judges as officers generally did not cast doubt on their impartiality is an issue we need not face. Our problem is to address those issues in 1998 in the context of your inquiry. While we are not in a position to obtain sufficient facts about any particular bar association or about the duties of every official of a bar association, we are prepared to lay out the considerations in the context of what we know in general about bar associations. Many bar associations have become much more active in recent years in lobbying for specific positions on controversial issues. Many bar associations have also become much more active in litigation, filing amicus briefs that take sides on a wide range of controversial issues, including abortion, tort reform, school busing, employment issues, family law problems, substance abuse, sentencing guidelines, and the like. The more that bar associations become involved in taking active roles as partisans in litigation and legislation, the less "quasi-judicial" their activities appear.
Your inquiry also requires that we focus on the position, treasurer of a bar association, that you have been asked to assume. The position of treasurer is different from that of a chair of the section because you would not be the spokesperson for a particular section of the bar association and therefore not so publicly out front on particular issues. But the position of the treasurer is more of a leadership position. In the first place, the treasurer's role is key with respect to organizing the priorities of the activities of the Association. Even more importantly, the treasurer is a member of the small group of individuals who are publicly responsible for the policies of the Association. The concern that a section leader might be involved in policy matters that would be presented to a court are multiplied in the case of the leadership of the Association itself. Assuming a leadership role in a bar association that has been heavily involved in taking lobbying and advocacy positions on numerous controversial issues would not, in our view, be compatible with the impartial performance of a judge's duty. We do not think that the issue should be resolved by an attempt to make an empirical judgment about how public your bar leadership role would be or whether in fact you have declined to participate in the decisions of the Association. That fact would not generally be known. The critical fact is your leadership position in the Association and the Association's activities. We do not have sufficient information to make that judgment with respect to your Association, and so we have set forth the general considerations that we believe should govern your decision.
Our conclusion with respect to serving as chair of the Board of Editors of the Bar Association's periodical is different. On the bare facts of the question you present, with two caveats, we see no obstacle to such service. The first caveat is that you should be careful not to act in such a capacity in a way that casts doubt on your capacity to decide impartially any issue that might be presented in a judicial proceeding and that might detract from the dignity of the judicial office or interfere with the performance of your judicial duties. We can imagine that the publication could become involved in a controversy that might raise such issues but your inquiry does not present those problems.
The second caveat is that we stated in Opinion 97-7 that a judge's role in soliciting new members of the section from among lawyers who might appear before him could raise questions. We have the same concerns about your role in soliciting articles from lawyers who are expert in particular fields. There is always the possibility that the solicitation of articles from lawyers who are likely to appear before you could involve subtle coercion or the perception of coercion. We have noted, in responding to another inquiry, that judges request lawyers to handle a wide variety of professional assignments, including service on professional committees, and that there is no ethical prohibition against such requests even though the same possibility for coercion may exist. See Opinion 98-5. That risk is unavoidable if the necessary work of the administration of justice is to proceed. But the situation is different when the judge who is making the request is acting from a position of power in an organization that is not judicial but that is related to the judiciary. Our advice is that, before accepting a leadership position in a legal organization, a judge should consider both the nature and the frequency of the requests the judge will be required to put to lawyers who may practice before the judge.