CJE Opinion No. 99-2
Receiving Payments from a Research Institute for Papers to be Written
January 15, 1999
CJE Opinion No. 99-2
You have requested advice about the propriety of your receipt of payments from a research institute("the Institute") for three papers you propose to write on the general subject of judicial administration.(1) The Institute has proposed that you write these papers on the subject of "Improving the Administration of Justice in Massachusetts" and that you build on a paper you have already written by discussing, in the Institute's words, "organizational, budgetary and other impediments to justice in the Commonwealth." The Institute intends to publish those papers in 1999 and compile them into a volume in the year 2000. The Institute has offered to pay you a stipend of up to $8,000 per paper plus reimbursement for out-of-pocket expenses. After the compilation is published, you anticipate receiving a royalty of up to 15% of the gross sales figures.
You and the Institute have begun negotiations for the first of those three papers. As presently envisioned, that first paper will be between thirty and forty-five pages, will take approximately three months to complete and will focus on the judiciary's budget. Before you begin research and writing, your project outline, including your research plan and methods, will be reviewed by the Institute. Before publication, the Institute will submit your manuscript to "a blind peer review process" after which you will be required to consider the reviewer's comments and, if appropriate, incorporate them into your final version. The Institute also proposes to reimburse you for certain expenses you incur during the course of your research.
The Institute is a non-profit corporation with headquarters in Boston. In the materials you provided to the Committee, the Institute describes itself as "[a] force for change in Massachusetts." It states that its mission "is to change the intellectual climate in Massachusetts - in a particular direction: [The Institute] believes that individual freedom and responsibility, limited and accountable government, and the expanded application of free market principles to public policy contribute to greater human dignity, happiness, and economic prosperity." In the same vein, the materials state that "[t]he nucleus of [the Institute's] mission centers upon ideas that are generated through scholarly research. With academic excellence as its foundation, [the Institute] has built its reputation on commitment to its independence, and on market-based policy prescriptions authored with academic rigor. [The Institute] exist[s] not only to generate ideas, but to bring new ideas into the policy arena that have measurable impact." In furtherance of that mission, the Institute has sponsored and published a series of papers on a variety of different subjects including public education, bilingual education, workplace safety, government contracts and the Boston convention center.
A division of the Institute is a Center, the function of which is to provide "an intellectual base for refocusing state government on its core function. The taxpayer's rightful expectation of quality services from government at the lowest cost is the foundation of [the] Center, to reduce government's burden on taxpayers and business . . .. The Center . . . will expose outdated or counterproductive government functions to public scrutiny, calculate compliance costs of burdensome regulation, and monitor the decision of the state auditor regarding specific privatization proposals. The Center publishes White Papers, hosts forums and conferences, and publishes a quarterly newsletter."
A second division of the Institute is a Resource Center ("the Resource Center"). In the materials you provided to the Committee, the Institute says the following about the Resource Center.
"Leading the charge among charter school entrepreneurs is [the Institute's] Resource Center, the only source of technical support available to charter schools. The [Resource Center's] role as leader and coordinator of the public charter schools represents an independent resource for these 25 school founders. The Resource Center lends a full range of support to the movement by identifying, recruiting, and developing educational leaders, working with legislators on policy issues, conducting research, and introducing interested businesses and charitable foundations to the charter school idea."
With all of that as background, three provisions of the Code of Judicial Conduct appear especially applicable to your request. Canon 4 of the Code 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 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."
A second relevant Canon is Canon 2(B) which, in pertinent part, says that 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." Canon 2(B) broadly prohibits activities tending to create a public impression that any institution or group is in a position to influence a judge's judicial activity in a manner that has a constricting force on his or her independent judgment. In that context, therefore, the term "private interests" includes any objective, agenda, plan or set of goals likely to be identified in the public mind with a particular non-governmental individual or entity.
Canon 5(C)(1) states that "A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves."
In our Opinion 93-2 we advised a judge of the Probate and Family Court that the above-quoted Canons did not bar the judge from writing a forward to a book about divorce so long as the judge was careful about expressing opinions about matters that might arise in court and about seeming to endorse views of the author of the book. See also Opinion 98-8 in which we advised, with two caveats, that service as chair of the Board of Editors of a bar association journal did not violate the Canons. On the other hand, we have advised judges about the dangers of participating in organizations that have their own agendas regarding matters that might come before the judges. See Opinions 91-2, 95-8, 97-8, 98-9, and 98-17.
Your inquiry falls somewhere in between the differing advice that we have given in the above situations. When we advised in Opinion 98-17 that you might receive a substantial award from an out-of-state Foundation, we focused on the purpose of the Foundation to reward accomplishments in improving the administration of justice and on the absence of evidence indicating that the Foundation acted as a partisan advocacy group before any courts. Later, you received informal advice from the chair of this Committee that there was no ethical inhibition against your competing for a $10,000 prize awarded by the Institute and your preparation of a paper embodying the ideas for which the award was granted.
The paper currently appears on the Institute's website. One version of the paper contains a section entitled "Action Plan for Implementation" that, among other things, calls on the Institute to: distribute your paper broadly to the bar, to business, judicial, and legislative leaders and to a series of named non-governmental organizations; to host a meeting of representatives of all the organizations that receive the paper and to orchestrate a joint petition to the Supreme Judicial Court for adoption of the suggestions the paper contains; provide research assistance for drafting the rules necessary to implement the suggestions the paper contains; and to coordinate with various other entities to provide education and training "to lawyers, judges, clerks, and staff" regarding your recommendations.
The current inquiry presents a considerably more difficult factual situation from the earlier situations in which you received advice because it involves a contract between you and the Institute to produce a series of papers relating to matters of judicial administration. From the material you have presented and that appears in your first paper prepared for the Institute, it is apparent that it is not merely a publisher of material relating to the administration of justice. It is not like a commercial or university law book publisher that publishes books and papers taking a wide variety of positions. The Institute is a law reform organization with a self-described specific point of view, described at the outset of this response, concerning the administration of justice. It is proposing to pay you the $24,000 for writing three more papers after the Institute reviews your proposed research plan and methodology. The inference seems apparent that it is prepared to do this because your proposals accord with its agenda for promoting change. The relationship that you describe seems less like that of an author submitting his work to an independent publisher and more like that of an "employee" or agent who has agreed to a long-term arrangement to produce written scholarship that fits with the action plan of the principal.
In our view, this kind of arrangement crosses the line between what is permitted and what is not under Canon 2(B), Canon 4(A), and Canon 5(C)(1). The executive, the Legislature, the public, and the judiciary itself count on the judges to express their views about matters relating to the administration of justice. A judge who enters into a contractual arrangement to be paid a substantial amount of money to express a certain point of view about matters of judicial administration, even though those views are the judge's personal views too, has compromised his ability to speak impartially about those matters. The judge may reasonably be viewed as a paid advocate and not as the representative of an independent judiciary. Such a situation seems to us to violate Canon 4(A) and especially Canon 5(C)(1)'s strictures concerning the proper performance of judicial duties. Moreover, the continuing nature of the arrangement also violates Canon 2(B)'s proscription against advancing the private interests of others and conveying the appearance of being in a special position to influence the judge, especially since the subject matter of the papers concerns a topic on which you might be expected to speak out because of your judicial position.
As a final note, as was true of CJE Opinion 98-17, the Committee makes no judgment about whether the Institute's proposal would run afoul of any provisions of the Commonwealth's conflict-of-interest law, G. L. c. 268A. Accordingly, you may wish to seek a formal opinion from the State Ethics Commission in that regard.
1. After you sought this advisory opinion, you requested additional guidance, on an emergency basis, in another matter involving the Institute. See Rule 5 of the Rules of the Committee on Judicial Ethics. You stated that the Institute planned a luncheon at which you would be honored as the winner of its "Eighth Annual Better Government Competition." You were also asked to conduct a briefing before the luncheon at which you would discuss an award-winning proposal you had submitted. The cost to attend the luncheon was $35 per person. However, anybody purchasing a table of ten for $500 (i.e., $150 over the cost of ten people individually) would receive "special recognition in the luncheon program, an invitation to [your] briefing and VIP seating." The luncheon, at first blush, had the earmarks of a fund-raising event. If it was, your participation would have been barred by Canon 5(B)(2) which states that a judge "should not be a speaker or the guest of honor" at a civic organization's fund-raising event. As proposed, you would have been both a speaker and a guest of honor, notwithstanding the fact that there was also to be a keynote speaker. However, it now appears that the event was not designed as a fund-raiser. The Institute has projected that the individual ticket sales along with the sales of the tables of ten will raise less than 70% of its costs for holding the luncheon. In these circumstances, the event will not be considered a fund-raiser and your participation will be permitted. In accord: New York Advisory Opinion 88-66, Rhode Island Advisory Opinion 84-2, and Arkansas Advisory Opinion 94-03. In rendering this opinion, however, we assume that attendance at the briefing is not exclusively conditioned on payment of a sum over and above the cost of the luncheon ticket.