Opinion  CJE Opinion No. 2003-5

Date: 03/20/2003
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

Serving on Boston Bar Association Council

You have requested an opinion from the Committee on Judicial Ethics as to whether you may serve as a member of the Council of the Boston Bar Association (association). You state in your letter that the council "is responsible for establishing the policies and supervising the direction and management of the affairs of the [a]ssociation." Although you have not provided specific information about the nature of the association's activities, much information about its activities is available on its web site, and the committee has examined that site in connection with your request.

The committee has previously issued two opinions on similar subjects. The most directly relevant is CJE Opinion 98-8, in which the committee, among other things, set out certain considerations for a judge to take into account when deciding whether to serve as a member of the council of a bar association that had responsibilities similar to those that you have ascribed to the association's council. Opinion 98-8 built upon CJE Opinion 97-7, where the committee advised a judge that he or she should not accept a position as a "section chair" of the Massachusetts Bar Association.

In both of those opinions, the committee noted, and we note again, that the starting point for analysis is Canon 4 of the Code of Judicial Conduct, which, in material part, provides 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:

* * * * *

(C) He may serve as member, officer, or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice."

Also directly relevant is the requirement of Canon 2 (A) that "[a] judge should . . . conduct himself at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary." Both provisions of the Code stress the importance of maintaining judicial impartiality and the appearance of impartiality. See In re Brown, 427 Mass. 146, 149 (1998).

With the preservation of impartiality and the appearance of impartiality as its primary concern, the committee began its analysis in Opinion 98-8 with a review of several points that had been made earlier in Opinion 97-7, as follows:

"In our Opinion 97-7, we were faced with a request inquiring whether a judge might serve as section chair of a major bar [a]ssociation. We advised against acceptance of the appointment. In our view, the problems raised by acceptance were 'cumulatively insurmountable.' One problem was with the 'role of chair as a spokesperson for the bar [a]ssociation in connection with matters that may be before a court, the Legislature or that otherwise may be considered in the realm of politics such that the impartiality and integrity of the judiciary could be adversely affected.' We thought that that 'concern, grounded in Canons 1 and 2,' was 'well founded and that the problem is so inherent to the union of the roles of judge and section chair as to require frequent and continuous designations of an alternative spokesperson.' In addition, briefs, recommendations, and policy statements approved by the section could be perceived as having the imprimatur of the section leadership, even if the chair declined to vote on a particular matter. Moreover, recruitment of membership and appointment of section leaders by the judge from among lawyers who might appear before that judge was also thought to raise questions. The totality of these circumstances led the Committee to conclude that although the judge's service might well promote improvement of the law, the legal system, and the administration of justice, it was not compatible with the proper performance of his or her judicial duties."

Using those observations as a point of departure, the committee then went on to state the following:

"Many bar associations have become much more active in recent years in lobbying for specific positions on controversial issues. Many bar associations have also become much more active in litigation, filing amicus briefs that take sides on a wide range of controversial issues, including abortion, tort reform, school busing, employment issues, family law problems, substance abuse, sentencing guidelines, and the like. The more that bar associations become involved in taking active roles as partisans in litigation and legislation, the less 'quasi-judicial' their activities appear. . . . The concern that a section leader might be involved in policy matters that would be presented to a court are multiplied in the case of the leadership of the [a]ssociation itself. Assuming a leadership role in a bar association that has been heavily involved in taking lobbying and advocacy positions on numerous controversial issues would not, in our view, be compatible with the impartial performance of a judge's duty. We do not think that the issue should be resolved by an attempt to make an empirical judgment about how public your bar leadership role would be or whether in fact you have declined to participate in the decisions of the [a]ssociation. That fact would not generally be known. The critical fact is your leadership position in the [a]ssociation and the [a]ssociation's activities."

The principles contained in those opinions are equally applicable to your request. Clearly, the association's council governs the organization and, in the process of governance, is inescapably faced with the task of making judgments about lawyers who may appear before you.

Moreover, a review of the association's web site reveals that, during the past two years, the association has, among many other things, (i) recommended adoption of the ABA's "Standards for the Operation of a Telephone Hotline Providing Legal Advice and Information," which contains a number of provisions governing the relationship between information providers and information recipients that could be the subject of litigation between the two; (ii) voted to oppose a bill of address pending in the Massachusetts Legislature; (iii) sent a letter to the chair of the Federal Trade Commission requesting reconsideration of its decision to apply to lawyers certain statutory provisions dealing with disclosure of policies regarding dissemination of private information; (iv) taken a position before the Securities and Exchange Commission regarding new standards of practice for lawyers who appear before that body; (v) appointed a task force to study the multi-jurisdictional practice of law; (vi) filed an amicus brief with the Supreme Judicial Court urging a specific result in a case pending before the court; and (vii) filed another amicus brief with the Supreme Court of the United States urging a specific result in a case pending before that court. Indeed, a review of reported decisions shows that the association often files amicus briefs in cases pending before the Supreme Judicial Court and in Federal courts. See generally CJE Opinion 2002-10 (advising a judge that he should not file an amicus brief in a pending case).

Finally, the association's Lawyers Committee for Civil Rights Under Law is an advocacy group that frequently appears in litigation in State and Federal courts. The Lawyers Committee web site contains the following information about its relationship with the association:

"In 1973, the Committee became the first pro bono project of the Boston Bar Association and is the only Lawyers' Committee in the nation affiliated with a major bar association. Although the Committee recently separately incorporated and received its 501 (C) (3) tax-exempt status, the Committee maintains strong ties with the Boston Bar Association."

Examining the quoted principles from Opinions 97-7 and 98-8 in the context of the association's activities listed above leads the committee to advise you that membership on the Council of the Boston Bar Association would not be consistent with the requirements of Canons 2 and 4 of the Code of Judicial Conduct. The committee believes that, like acceptance of the position of Massachusetts Bar Association section chair, the problems attending acceptance of a position as a member of the association's council would be "cumulatively insurmountable" in light of the association's activities and the council's role in those activities.

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