Opinion  CJE Opinion No. 2002-2

Date: 01/29/2002
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Representing Self in Matter Before Another Court

You have asked whether or not you may represent yourself in a matter pending before the Land Court. You and your brother have inherited from your father, as tenants in common, a permitted, but not yet built subdivision. An action has been commenced in the Land Court by two of your abutters who have asked the court to enjoin the construction of the subdivision, to rule on the rights of the parties with respect to a right-of-way and ownership of the land within the right of way and "[to] rule on the zoning ordinance of the City . . . and its applicability with respect to the subdivision." Your wife, who is an attorney, is representing your brother and has filed a special appearance and answer for you in the litigation.

Canon 5(F) states that "A judge should not practice law." Canon 5(F)'s prohibition is not contingent on remuneration. Although the Committee has not previously addressed the issue and although our Code of Judicial Conduct does not address the subject of pro se representation, a generally accepted exception to this advocacy rule allows judges to represent themselves. The Committee believes that such an exception is inherent in the Code and thus permits a judge to represent himself or herself in litigation.

You should be mindful that "even when appearing pro se a judge should take care not to create the appearance of receiving favored treatment." Shaman, Lubet, and Alfini, Judicial Conduct & Ethics, 239-240 (2000). You must also guard against the danger of creating the perception that you are acting as an advocate for your brother. You and your brother, who is currently represented by your wife, share a joint interest in the inherited land which is to be subdivided. What may appear as a case of pro se representation to you, may have the appearance of something else in substance to others, subject to the role and degree of involvement you assume in the litigation. Assuming the role of lead counsel, for example, might be problematic. In such a circumstance your advocacy on your own behalf might be construed as also acting as his legal advocate and thus run afoul not only of Canon 5(F) but also of the provisions of Canon 2(B) that forbid a judge from lending the "prestige of his office to advance the private interests of others."

Two additional thoughts are appropriate, although neither directly concerns the subject of pro se representation. First, you have the right to manage your property. However, you must exercise this right within appropriate ethical constraints. Canon 5(C)(2) states a judge, subject to 5(C)(1), may "hold and manage investments, including real estate . . . but should not serve as an officer, director, manager, advisor or employee of any business." Canon 5(C)(1) provides 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 in which he serves." Moreover, Canon 2(A) states that "A judge . . . should conduct himself at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary."

You are the presiding judge in the city where the land is located. It is quite possible, given the scope of your court's territorial jurisdiction, that attorneys representing the abutters and or the city have appeared before you and will continue to do so, thus putting you in the untenable position of being both judge and opposing litigant in cases involving the same attorney. This problem is not obviated by the fact that the current action has been brought in the Land Court. Canon 2's caption states that "A judge should avoid impropriety and the appearance of impropriety in all his activities." Moreover, even if those attorneys do not appear before you, you may be called upon to interpret the very provisions of the zoning code that are at issue in the litigation to which you are a party. Both problems require circumspection on your part and you should reevaluate periodically whether participation in the litigation or management of the property will raise questions regarding the degree of impartiality, in fact and in appearance, you must maintain with respect to matters that come before you.

Second, you have not focused on the contemplated use of the land and there is no indication that it will be used for commercial purposes. You should be aware, however, that the tenor of the Code of Judicial Conduct is to circumscribe judge's financial activities by differentiating between active and passive involvement. Decisions tend to be made on a case-by-case basis as to whether the management of an investment crosses the line and becomes forbidden involvement with a business. As any financial pursuit becomes more active, personal, and time consuming, even in the absence of interference with the performance of judicial duties, the activity becomes more "business-like" and the increased personal involvement carries with it an enhanced risk of impropriety." Shaman, Lubet, and Alfini, Judicial Conduct & Ethics, 223 (2000).

It is impossible for the Committee to craft responses to situations that may arise prospectively as we are limited by the facts presented. You are in a better position to consider the ramifications of appearing pro se in the circumstances of your case. However, given the complexity of the issues presented by your request, if you still choose to represent yourself, you should proceed with caution.

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