In CJE Opinion 2003-5, the Committee on Judicial Ethics opined that membership on the Council of the Boston Bar Association (association) would not be consistent with the requirements of Canons 2 and 4 of the Code of Judicial Conduct as it is presently written (current Code). Although you were not the judge who requested and received that opinion, you have asked the committee to reconsider it, observing in your letter (1) that, in rendering Opinion 2003-5 the "[c]ommittee was, by its own admission, forced to rely on limited information about the [a]ssociation obtained solely from its web site," because the requesting judge had not provided the committee with information about the association's activities; and (2) that, unlike the current code, the Code that becomes effective on October 1, 2003, (new Code) contains helpful commentary in addition to the text of the Canons themselves. In support of your request for reconsideration, the association has supplied the committee with copies of the minutes of the council meetings in March, April, May, June, and July, 2003, as well as a copy of the association's bylaws, general membership information, and a letter from the association's chief financial officer describing certain components of the association's revenues and expenditures. (1)
In accordance with your request, the committee has reconsidered Opinion 2003-5 in light of the new Code and the new materials. Having done so, the committee reaches the same conclusion. To begin with, the relevant portion of Section 2 A of the new Code is virtually identical to Canon 2 (A) as it appears in the current Code. (2) Nothing in the commentary suggests that this retention of the same language was intended to convey a different meaning.
Insofar as Canon 4 is concerned, the provisions of new Section 4 A replace the prologue to Canon 4 of the current Code (3) and state that "[a] judge shall conduct all of the judge's extrajudicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or . . . (3) interfere with the proper performance of judicial duties." Section 4 C (3) of the new Code goes on to state:
"A judge may serve as an officer, director, trustee, or non-legal advisor of an organization or agency devoted to the improvement of the law*, the legal system, or the administration of justice; or of any educational, religious, charitable, fraternal, or civic organization that is not conducted for profit or for the economic or political advantage of its members, subject to the following limitations and the other requirements of this Code." (4)
Then, in the following fashion, the commentary to Section 4 C (3) (a) speaks to the issue that your request raises:
"A bar association is an organization 'devoted to the law, the legal system, or the administration of justice' and therefore qualifies as an organization on which a judge may serve as an officer, director, trustee, or non-legal advisor. That permission, however, is qualified by the requirement in Section 4A that such service not 'cast reasonable doubt on the judge's capacity to act impartially as a judge' and that it not 'interfere with the proper performance of judicial duties.' For example, many bar associations have become active in litigation, filing amicus briefs that take sides on a wide range of controversial issues. The more that a judge takes a leadership role or a role as spokesperson in such an organization, the more likely it is that the restrictions contained in Section 4A would prohibit assuming one of the positions mentioned in Section 4C(3). The same considerations would also hold true with respect to holding office in the other organizations mentioned in Section 4C(3)."
The committee believes that this commentary echoes the discussion contained in CJE Opinions 97-7 and 98-8 on which the committee based Opinion 2003-5. Consequently, the committee believes that the new Code, insofar as it is relevant here, makes no change to existing law. (5)
Turning from an analysis of the legal environment to the factual material that the association has delivered to the committee in your behalf, the committee first observes that art. VII, § 3 of the association's bylaws reposes in the council the responsibility "for establishing the policies and supervising the direction and management of the affairs of the [a]ssociation." Then, without limiting the generality of that broad grant of power and responsibility, the bylaws go on to state:
"The [c]ouncil shall have the power to act for the [a]ssociation directly or through sections or committees in proposing, supporting or opposing legislation, rules or regulations, or appointments or elections to offices concerned with the administration of justice, and may make statements on behalf of the [a]ssociation on questions of important public interest which in the judgment of the [c]ouncil warrant the involvement of the bar."
These provisions leave no doubt that the twenty-eight members of the council are entirely responsible for setting the association's policies and for articulating and implementing those policies on behalf of the twenty-five percent of Massachusetts attorneys who make up the association's membership.
Review of the meeting minutes shows that the council exercises its power by deep and detailed consideration of various public issues -- consideration that is often followed either by a vote to take a public position on the merits of those issues or by some action that affects certain segments of the practicing bar, the business community, or the public at large. For example:
* The minutes of March 18, 2003 reveal that the council undertook a discussion of whether to support legislation "addressing residential liquid fuel spills," legislation that, among other things, dealt with tax credits for "equipment upgrades" and provided for "mandatory coverage under homeowner's insurance."
* On April 15, 2003, the council took up the question of the association's "Public Interest Task Force" and the fellowships that the task force created. Included in the council's consideration was a lengthy discussion of the number of billable hours devoted to the fellowship program to which law firms would agree. Among other things, participants in the discussion recounted the results of exploratory inquiries and negotiations they had had on the subject with various Boston law firms.
* The council meeting on May 20, 2003 featured a discussion of the association's Lawyer Referral Service, a service that matches clients with attorneys who then charge the clients for the services they render. Among the matters discussed was the creation of "experience panels," the existence of which would encourage attorneys to refer clients to the service. That meeting also included a discussion, and council approval, of a revised "Homestead Act" that, among other things, was designed to ensure that "property owners' protection is clearly delineated." As part of the discussion, members of the council focused on, among other things, the desirability of insuring that the act "measured up to current [association] policy on same-sex marriage and homosexual civil rights." The council then turned to approval "of the board of executive directors" of Greater Boston Legal Services, an organization employing attorneys who frequently appear in court throughout the Greater Boston area.
* On June 17, 2003, the council unanimously voted to endorse legislation pending in the General Court that was entitled "An Act to End Child Hunger in Massachusetts." There was some discussion, in that context, on whether the association was "taking on too many public policy issues." The discussion ended with a suggestion from the association's president that the association "should be weighing in [with the Legislature on] a few important issues."
* The July 15, 2003 meeting included an extensive and detailed report from the association's Corporate Governance Task Force on a wide range of corporate governance matters, including: letters the group had sent to the Securities and Exchange Commission regarding proposed changes to attorney ethics rules; evaluation of various legislative proposals relating to "whistle blowers"; and the task force's desire to monitor bills filed in the Legislature "out of a concern that overly strident or unduly restrictive measures might be proposed in the wake of the corporate governance scandals."
Finally, returning once again to the association's web site, which has been redesigned since Opinion 2003-5 was written, one finds a list of association "sponsors" as one of the very few items on the newly streamlined home page. Each of the sponsors is an entity that regularly appears in the Commonwealth's courts. The site also contains a press release praising a local bank for its "public spiritedness" in signing "an agreement to waive any conflict of interest for pro bono bankruptcy cases involving $25,000 of debt or less that are handled by the" association's Volunteer Lawyers Project. The release goes on to observe that "[t]he waiver was proposed by the Boston Bar Association's Bankruptcy Law Section, amid concern that lawyers and law firms representing banks such as [the bank that signed the agreement], or hoping to represent [such] banks . . . could be prevented by the Rules of Professional Conduct from doing pro bono work involving low-income clients with outstanding debts to [the bank]."
The foregoing recitation is not, of course, a comprehensive listing of all of the events reflected in the minutes or on the web site. Indeed, whether one agrees or disagrees with the positions taken by the association on any given issue, both the minutes and the web site reflect an enormous amount of volunteer effort organized and directed toward advancing a broad range of issues affecting the public good as the association sees that good.
The difficulty, therefore, is not with the activities per se, but with judicial participation at the highest level of policy-making regarding those activities or otherwise advancing the association's goals. It would be highly inappropriate for an individual judge to suggest to a particular bank that it waive conflict of interest provisions of the Rules of Professional Conduct so that a certain class of people could be represented by attorneys who otherwise might be prohibited from representing them, or to praise the bank publicly for having done so. Judicial participation in activities that are privately "sponsored," particularly those "sponsored" by entities frequently involved in litigation, presents very delicate issues and is of doubtful propriety. See CJE Opinion 2003-1 and CJE Opinion 2002-12. Although a judge may advise a legislative committee on legislation that affects the administration of justice, see Section 4 C (1) of the new Code judges may not individually take public positions on legislation dealing with issues of substantive law that they eventually may be called on to decide. Cf. CJE Opinion 97-4. Judges cannot be in a position of participating in creating devices designed to make attorneys feel confident in referring matters to designated attorney panels; in working out with law firms how many billable hours they would be willing to allow associates to devote to nonbillable matters; or in approving or disapproving the leadership of an organization that is involved in frequent litigation before them.
What a judge cannot do individually, the committee is of the opinion, the judge cannot do as part of a collective effort. The committee's opinion in this regard, and the positions the committee took on the same subject in Opinions 97-7 and 98-8, are congruent with the position taken by the Appellate Judges Conference of the Judicial Division of the American Bar Association in 1992, which is described in detail at 31 No. 2 Judges Journal 9 (1992). The Conference accepted the recommendation of a committee of State and Federal judges that had examined the 1972 ABA Code of Judicial Conduct, the 1990 ABA Code, and the Code for United States Judges. The Conference concluded that:
"(1) judges are ethically forbidden to make public statements on certain matters; (2) some ABA public policies deal with those matters; (3) judicial members of the ABA should not participate in debate or adoption of those policies; (4) abstentions, disclaimers, and other devices should be employed to discourage attribution of those policies to the ABA's judicial members; and (5) judges should not occupy the highest ABA offices because those who do will unavoidably become identified with the ABA's public positions."
Included among the "highest offices" was the ABA Board of Governors, a body consisting of thirty-three members with functions similar, vis-a-vis the ABA, to the council's functions vis-a-vis the association. This is what the committee had to say about membership on the board:
"We recognize that expectations about what the public will reasonably believe are a matter of judgment. Others may conclude that, at least with appropriate disclaimers and recorded abstentions, the public will avoid any connection between controversial ABA policies and judges who serve at the pinnacle of the ABA hierarchy. We have debated the question at length among ourselves, however, and are unanimous in our belief that the risk of public misperception in this instance is too great."
For the reasons stated above and in prior opinions, this committee agrees with those observations. Accordingly, the committee reiterates the advice that a judge's service on the Council of the Boston Bar Association is inconsistent with the requirements of the Code of Judicial Conduct, both the version currently in effect and the version that will become effective on October 1, 2003.