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Opinion CJE Opinion No. 2003-7

Date: 04/22/2003
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 or 617- 557-1048.

"Appearing" at Fundraiser; Contribution to Fundraiser

You are a judge who has sat in a courthouse where conditions had become so deteriorated that the building became the subject of litigation. A so-called blind trust was created with a retired judge serving as the trustee. Contributors to this trust remained anonymous. Presumably many of the lawyers who routinely practiced in that courthouse contributed to the trust. The judges of the court do not know specifically, however, which if any of the attorneys who practice before them were contributors.

The trust engaged the services of an attorney to pursue an action seeking repairs or better quarters for the court. The attorney provided his services pro bono publico, and incurred substantial costs including fees for expert witnesses. These litigation expenses were borne initially by the attorney. The litigation was ultimately successful. At the trial of the case, one or more of your judicial colleagues testified on behalf of the plaintiffs who were seeking remediation.

Members of the bar and other interested individuals then organized a dinner to honor and thank the successful attorney for his efforts. The dinner was planned as an event to raise funds to retire the debt arising from the costs attendant to the litigation. There was substantial publicity promoting the event, which was characterized as a testimonial for the lawyer. The attorney customarily does not appear before any of the judges of your court, as his practice focuses elsewhere in the trial court. Nevertheless, it is certainly possible that he could appear before you in the future.

You said in your request that you knew that you could not attend the fundraiser, because to do so would have revealed to you the identity of many of the attorneys who contributed and who may practice before you, but you inquired whether:

  1. you could "appear" in a video that would be shown at the dinner or send a letter to be read aloud in which you acknowledge the attorney's work and thank him for his efforts;
  2. you could individually contribute financially to the retirement of the debt.

Your inquiry implicates both Canon 2 (B) and Canon 5 (B). Canon 2 (B) provides in relevant part  that:

"A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him."

Canon 5 (B) (2) provides that:

"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 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."

In previous opinions, we have stated that Canon 2 (B) applies when an organization uses a judge "as a draw in its fund-raising activities" (CJE Opinion 98-18), and that "a judge should avoid giving ground for any reasonable suspicion that the judge is utilizing the power and prestige of the office to persuade others to contribute to a charitable or civic enterprise" (CJE Opinion 89-1).

As to your first question, relative to presenting a video or letter "thank you," while Canon 5 (B) (2) permits attendance at an organization's fund-raising events, you voluntarily opted not to attend so as not to become aware of the identity of those contributors who did attend. The committee believes that a video or letter presentation in which you thanked the attorney in these circumstances would have implicated Canon 2 (B). Even if you were not physically in attendance, you would have been featured in a very prominent role which could have been construed as using the prestige of your office to persuade others to contribute to the cause; and even if the video or letter were not advertised in advance as part of the dinner's publicity, a video or letter could have given the impression that the honoree, and conceivably all those contributors who attended, were in a special position to influence you. Moreover, Canon 5 (B) (2) clearly prohibits your being a speaker at a fundraiser, and the committee is of the view that appearing as a speaker by "remote" would not have cured the ethical problem.

As to your question whether you could yourself contribute to the retirement of the debt, the committee is of the opinion that nothing in the Canons prohibits such donations. However, the fact that you contribute could not be publicized by the trust in its publicity for the dinner either in advance or afterward. You should make clear to the trust that your name must not be publicized in any way by the trustee or any committee affiliated with the fund-raising objectives so that you remain in compliance with Canons 2 (B) and 5 (B) (2).


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