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Opinion

Opinion CJE Opinion No. 2000-9

Date: 11/15/2000
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Serving on Board of Directors, Community Foundation

You have inquired about the appropriateness of your remaining on the board of directors of a community foundation. Before you were appointed to the court, you were an original corporator and you served as chair of the Development Committee and as an officer. As a director, your name appears on the letterhead of the organization. The foundation is a non-profit charitable organization and holds endowments of various charitable organizations, trusts, and foundations and also funds that it has raised for its own philanthropic purposes. It distributes funds to non-profit organizations only, except for scholarship funds, which it disburses to individuals.

Canon 5(B) of the Code of Judicial Conduct addresses your inquiry. It provides:

"A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

"(2) A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose, but he may be listed as an officer, director, or trustee of such an organization. He should not be a speaker or the guest of honor at an organization's fund-raising events, but he may attend such events.

"(3) A judge should not give investment advice to such an organization, but he may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions."
Canon 5(B)(2) explicitly authorizes a judge to serve as a member of the board of directors of a charitable organization, subject to a number of limitations. It does not appear from your inquiry that the activities of the community foundation implicate, directly or indirectly, the conditions set forth in Canon 5(B)(1). We have addressed the conditions set forth in Canon 5(B)(2) in our Opinion 91-3, which addressed service on the community advisory committee of a non-profit hospital. In that Opinion we advised a judge as follows:

If you do serve on the Committee, you will be subject to the following limitations:

"1. you should not solicit funds for the Hospital, nor 'use or permit the prestige of [your] office for that purpose . . . [nor] be a speaker or the guest of honor at . . . [the Hospital's] fund raising events,' although you may attend such events, Canon 5(B)(2);

"2. while you may be listed by the Hospital as a member of the Committee, you should not permit your name to be included on stationery used in fund-raising, nor in any way permit a 'selective emphasis' of your name and office (Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges, p. 31; see also Canon 2(B));

"3. you 'should not give investment advice' to the Hospital, Canon 5(B)(3); 

"4. you should not permit your service on the Committee to be overly time-consuming so as to 'interfere with the performance of [your] judicial duties,' Canon 5(A)."

In our opinion, the same advice is applicable to your inquiry.

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