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Opinion

Opinion CJE Opinion No. 2003-18

Date: 12/10/2003
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.

You have asked for an opinion concerning the propriety of being interviewed as part of a project celebrating the three hundred and fiftieth anniversary of a city in the county in which you preside. The project includes the publication of a series of "chapbooks" regarding the history of the ethnic communities of the city. The authors of the book on the Jewish community would like to interview you. It is your understanding that the authors are interested in asking you about significant influences that prepared you for a career in social work and the law and whether Jewish ethics and values continue to influence you as a professional.  

The city has established a gift account to which local businesses and individuals may contribute. Each author may use start up funds from the gift account. Profits from the sale will be used for the general expenses of the anniversary celebration, with any excess being passed on to the next fiftieth year committee or being distributed to local nonprofit corporations or local government agencies. No individual will benefit financially from the profits, nor will donors be recognized in any text or the chapbook project in general. At some point during the anniversary year there will be a general ceremony to honor the donors.

You have asked for an opinion concerning the applicability of the Code of Judicial Conduct as regards the content of the proposed interviews and the funding of the project. Section 2 B of the Code, effective October 1, 2003, in relevant part provides that a judge "shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge." Section 4 C (3) (b) (i) provides that a judge "shall not personally participate in the solicitation of funds or other fund-raising activities . . . ."  

The committee is of the opinion that your participation in this project is not prohibited by the sections cited. Section 2 B is designed to "prevent public perception that a judge is using his or her office for any purpose save that for which the office was created, i.e., the neutral dispensation of justice to all litigants." CJE Opinion 2000-6 (construing essentially identical provisions of Canon 2 [B] of Code of Judicial Conduct in effect prior to October 1, 2003). Your interview does not run afoul of this admonition. Participation in the project would not convey the message that the prestige of your office is being used to advance a private or commercial interest. The profile would be a biographical piece as part of the history of the Jewish community. The beneficiary of the project is the city celebrating its anniversary.

A review of relevant committee opinions supports the conclusion just stated. In CJE Opinion 98-1 the committee approved the use of judicial biographical sketches and photographs in a law school alumni booklet. The committee reasoned that although the booklet may have served the function of attracting prospective students, it was not designed or intended to be used for fundraising. In addition, nothing in the brochure amounted to an explicit endorsement of the school's curriculum, faculty, or ranking in the array of educational options a student might pursue. Like the biographical sketch your request envisions, the law school's neutral, biographical presentation did not amount to an implicit or explicit endorsement of the school or of the education it provided. Contrast CJE Opinion 2000-6 (judge would be featured in an advertisement for a university to appear in newspapers and magazines); and CJE Opinion 90-1 (judge's biography would appear in a law firm's promotional brochure).  

The fact that the proceeds from book sales will help finance the rest of the project or will be used to defray the costs of future commemorations appears to be inconsequential. Indeed, the contrary result would mean that a judge could not cooperate in the publication of his or her biography if the biographer were entitled to keep the proceeds of the book sales. Although the books will be sold for more than the cost of production, any profit will be used to cover the expenses of the celebration, be set aside for subsequent events, or donated to a charity in the event any money is left over. This is analogous to buying a ticket to a dinner at a price designed solely to cover the dinner's cost, with the understanding and expectation that any unused food will be given to a homeless shelter.  

To insure, however, that you do not lend the prestige of your office to advance any private interests it might be prudent to insure that sponsors not be identified in individual books. In addition, you should not make an appearance at the event to honor the celebration's underwriters because your appearance could be viewed as judicial endorsement of the sponsors or their generosity. See generally CJE Opinion 2002-12 (stating that judge should not attend a law school event designed to honor graduates who had become judges, where the costs of the event were paid by individual sponsors who were listed in an event booklet); and CJE Opinion 2003-1 (stating that judge should not receive an award at a Chamber of Commerce ceremonial luncheon sponsored by publicly identified businesses and legal firms).  

For these reasons, the committee is of the opinion that the Code of Judicial Conduct permits you to participate in the project you have described. In so doing you should take appropriate steps to insure that individual sponsorships do not appear in your book, and you should not attend any event that is held to honor the celebration's underwriters.

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