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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 are a member of the National Association of Women Judges (NAWJ) and of a committee for District 1 (which includes Massachusetts, Rhode Island, New Hampshire, Maine, and Puerto Rico) that is exploring the feasibility of developing a proposal to host in Boston the organization's October, 2007 annual conference. As a member of the conference committee, which includes five other judges, you are exploring the feasibility of such an undertaking. You have asked, in behalf of yourself and your colleagues, whether your involvement in the proposed planning and conduct of the conference would run afoul of any provision in the Code of Judicial Conduct that became effective on October 1, 2003, and, in particular, Canon 4 of the Code. (1)
The NAWJ is a national organization of over thirteen hundred members. Members of the NAWJ are also members of the International Association of Women Judges. The NAWJ is a charitable organization with so-called 501 (c) (3) status for purposes of the Internal Revenue Code. The NAWJ mission statement states that the organization's goal is to "provide strong, committed judicial leadership to ensure fairness and gender equality in American courts" and provides that, through judicial education and "interaction," the group promotes "equal access to justice for vulnerable populations." The organization also offers "professional and personal support to enable judges to achieve their full potential on the bench." Membership is open to all judges and, in a nonvoting capacity, other persons who may wish to join. Educational programs are open to all judges, whether or not they are members. NAWJ outreach programs have included a District 1 Law Day program for high school students to encourage young women and students of color to consider the law and judiciary as a career.
The NAWJ has conducted an annual conference in different cities since its inception twenty-five years ago. The annual conferences, as well as periodic regional conferences, are designed to promote the effective administration of justice by providing continuing legal education programming for judges on a variety of issues. The annual conference is the organization's premier event. Four hundred people attended the last annual conference, held in Washington, D.C.
In planning for the conferences, the NAWJ's national office enters into contracts for hotels, banquet and off-site meeting space, and transportation. The national office also promotes the event among national and international membership; collects a $400 registration fee from the attendees, who also pay for their own travel and lodging; and is responsible for the costs of the event to the extent that registration fees are insufficient to cover them, which is often the case. Conference expenses include the meals of attendees, costs of keynote speakers, meeting rooms, equipment rentals, publicity, and program printing costs.
Generally, the conferences break even, with contributions making up the difference between the registration fees and the event's costs. Any profits that are realized generally are turned over to the national office. However, Indianapolis, the host of next year's conference, has sought and obtained approval to retain twenty-five per cent of the funds generated from a silent auction which is conducted during some of the conferences.
The host district is responsible for local planning and fundraising. You envision obtaining some planning support from the Administrative Office of the Trial Court, the Flaschner Judicial Institute, and the Social Law Library, although budgetary and other constraints may limit the availability of Massachusetts court resources during the planning process. Apparently, there is also a "conference resource board" that assists in planning and underwriting each annual conference. Members of that board include Lexis-Nexis and Westlaw. Because planning assistance from court sources may be limited in Massachusetts, the resource board is contemplating a contribution toward the approximately $30,000 cost of hiring a conference planner.
The District 1 planning committee intends to work with the national program committee to formulate the educational theme of the conference, identify and invite the conference speakers, and engage in general conference planning and coordination. The District 1 committee would, among other things, arrange for equipment rental, meal planning, logo design, flowers, meeting rooms, and staffing of registration tables by volunteers. You expect that most of the invited speakers and entertainers would appear without a fee.
You plan to encourage Massachusetts judges to attend the conference and would ask them for contributions to a regional basket that will be auctioned off at the silent auction. By way of example, you indicate that the District 1 basket at the last annual conference included a book ("Make Way For Ducklings"), local wine, a lobster pot, Boston Bean Pot candy, and a watercolor painting by a member judge. It is your hope that twenty-five per cent of the proceeds from the silent auction will be allocated for District 1 outreach education programs or to support delivery of pro bono legal services.
You also propose to establish a "friends committee" and various subcommittees comprised of members of the legal community whose responsibilities would include organizing the silent auction, securing and organizing volunteer staff, and soliciting goods and services from law firms and individual members of the bar. You have received a tentative commitment from a close personal friend, a member of the bar who does not practice before you, to act as the chair of the friends committee. She would select the members of her committee, and you anticipate naming or recommending the heads of the various subcommittees (publicity, auction, community outreach, website, logo contest, banquet invitations, conference journal, etc.). Solicitations would be made in the name of the NAWJ only, for the purpose of funding the educational programming. The friends committee would solicit goods from State or municipal tourism agencies and private vendors to be given to conference attendees. Items such as canvas bags, nylon briefcases, mugs, T-shirts, pens, and hats would have logos identifying the contributor.
The Massachusetts Association of Women Lawyers, the Women's Bar Association, and other bar associations would be asked to cosponsor one or more educational or social programs such as a lunch with a speaker. You also plan to continue the tradition of listing all conference contributors in a conference journal distributed to all who attend the conference. You intend to hang banners with the logos of sponsors, such as Lexis-Nexis and Westlaw, in the registration area, where sponsoring service providers may have information booths set up, as well as in rooms in which the events sponsored by the service providers will take place. You plan to honor a member of the Massachusetts judiciary and indicate that the award will be publicized in advance of the conference.
With that as background, you have asked whether your "involvement in the proposed planning and conduct of the conference, as described in [your] letter, will run afoul of any provision in the [C]ode of [J]udicial [C]onduct, and in particular Canon 4, as recently revised." The committee cannot comment on all aspects of your participation in the conference and the planning for it. The project you describe would be a complex undertaking, and neither you nor the committee can possibly anticipate all of the contingencies that may occur as planning and execution of the project proceed. The issues on which the committee can and will comment concern your participation in fundraising. If you have concerns about other specific and concrete issues, either now or as the planning proceeds, please feel free to submit an additional request or requests.
The committee's focus on fundraising leads to consideration of the relevant provisions of Sections 2 A, 2 B, and 4 C (4) of the current Code. Section 2 A requires that a judge "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Section 2 B provides in pertinent part 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." Finally, Section 4 C (4) provides that, subject to the requirements of other applicable sections of the Code,
"a judge may serve as an officer, director, trustee, or non-legal advisor of an organization composed entirely or predominantly of judges that exists to further the educational or professional interests of judges. A judge may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but may not personally participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority."
As is apparent from the text, these sections of the Code focus on the conduct of individual judges and do not purport to regulate the conduct of organizations to which judges belong. The committee therefore focuses on your personal involvement in the planning process and not on the activities of the NAWJ that occur without your direction or control. See CJE Opinion 2002-10 (declining to advise a judge whether an organization of which he was a member could file an amicus brief in the Supreme Judicial Court).
It appears that the NAWJ is an organization that exists to further the educational and professional interests of judges. As a consequence, Section 4 C (4) permits you to serve as an officer of the organization, to assist in planning fundraising activities, and even to solicit funds (albeit only from judges over whom you exercise no appellate authority). The section's broad enabling provisions are circumscribed, however, by considerations flowing from Canon 2. As the commentary to Section 4 C (4) explains,
"[a] judge may . . . engage in substantial leadership and budget activities with respect to . . . judge-controlled organizations described in Section 4 C (4), but may not engage in personal solicitation of funds except from other judges over whom the judge does not exercise supervisory or appellate authority. However, the fund-raising activities of judge-controlled organizations must be carried out in a way that does not violate other provisions of this Code, such as Sections 2 A and 2 B. The names of those who contribute or decline to contribute must not be disclosed publicly or to the judges in the organization, and that policy must be disclosed to those solicited. In some circumstances, fund-raising, even if anonymous, might subsequently require recusal of a judge because of the risk of the appearance of impropriety should the fact of a substantial donation by a party or its lawyer become known."
Since Section 4 C (4) became effective on October 1, 2003, the committee has not had the occasion to address the scope of permissible judicial fundraising activity in organizations composed entirely, or predominantly, of judges. Given the text of the commentary, though, the committee believes that the section should be construed in a manner consistent with previous committee opinions advising against participation in events and activities that involved public acknowledgment of "sponsors" or "contributors." In each of those opinions, the underlying concern was the likelihood that participation in such events would, in the words of Section 2 B, "convey or permit [the sponsors or contributors] to convey . . . that they [were] in a special position to influence the judge." See CJE Opinion 89-1 (involving plaques that would identify names of lawyers and businesses that donated courthouse flags); CJE Opinion 2002-12 (stating that judge should not attend law school event honoring her and other graduates who became judges, where the event was paid for by sponsors who were listed in the programs); CJE Opinion 2003-01 (stating that judge should not accept award from the Chamber of Commerce, in part because the award luncheon was sponsored by firms and businesses that would be publicly acknowledged); CJE Opinion 2003-18 (advising that individual sponsors should not be listed in books containing judge's biography to be published as part of city's anniversary celebration, and that judge should not attend event honoring identified celebration sponsors).
The committee believes that the same anonymity requirement applies to you because you are the head of the planning committee and, in that capacity, are, at least in part, responsible for the event's success. A "friends committee," as you propose, would be an appropriate device for complying with those anonymity requirements. The existence of such a committee would not by itself, however, prevent you from learning the identities of those who donate the mugs, tote bags, and other giveaways emblazoned with corporate logos, or prevent you from learning the identities of event sponsors if their banners hang from the walls of the rooms where the events are held, or prevent you from learning the identities of nonjudicial raffle winners. Other measures would be required there. (2)
If you elect to establish a friends committee, you should ensure that the solicitation of committee members is not carried out in a way that could reasonably be viewed as coercive, cf. Section 4 C (3) (b) (iii), and that membership on that committee does not itself permit committee members to convey to others that they are in a special position to influence you. See Section 2 B. See generally CJE Opinion 97-7. In addition, you should take care to ensure that the solicitation of funds and assistance by the friends committee does not carry with it the appearance of coercion, for the prohibition on judicial solicitation of funds is designed to avoid not only the problems of influence recognized by Section 2 B, but also the problems of perceived judicial coercion as well. See CJE Opinion 98-5 ("The prohibition [of judicial participation in fund-raising] . . . seeks to avoid the actual or perceived use of the power of the court to induce contributions, and it is phrased broadly to avoid any possibility of misuse or misunderstanding"). Fundraising approaches by the friends committee should avoid the perception of coercion as well. Finally, solicitation of funds from bar associations is, in general, subject to the rules and considerations applicable to solicitation of funds and assistance from others, see CJE Opinion 98-5, but the Code does not prohibit noncoercive solicitation of planning assistance or program presentations from those professional organizations. Id.
To this point, the committee's discussion has concerned fundraising in preparation for the conference. From the content of your letter, however, the committee understands that fundraising also will take place at the conference itself. Specifically, you plan to have a silent auction and hope to use some of the proceeds for nonconference activities in District 1. In addition, if revenues generated by the sale of tickets for the gala dinner will be used to offset the costs of the conference generally, and not simply the costs of the dinner, then the dinner is a "fundraiser," i.e., an event where tickets are priced to exceed the costs of the event itself. See CJE Opinion 2003-1. The committee infers from your letter that judges and others from whom you personally would not be permitted to solicit funds may attend conference functions where fundraising will occur.
The recital just concluded raises the question whether you may participate in planning events that will involve fundraising of a type you personally could not carry out. Section 4 C (4) says that you may, and, in that regard, distinguishes between "organization[s] composed entirely or predominantly of judges that exist to further the educational or professional interests of judges," i.e., organizations like NAWJ, and all other civic and charitable organizations. See Section 4 C (3) (b) (i). That said, the committee believes that you must carefully observe the line between planning for fundraising and fundraising itself. For example, although the committee believes that you may plan a silent auction of the type your letter describes, the committee also believes that the Code prohibits you from personally urging others to place bids if the group of potential bidders you urge includes people other than judges over whom you have no appellate or administrative authority. (3) Likewise, although the Code permits you to plan a fundraising dinner at which a judge will be presented with an award, the Code would not necessarily permit you to receive the award, again if the audience included men and women other than judges over whom you have no appellate or administrative authority.
Two final thoughts. First, Westlaw and Lexis-Nexis apparently play an ongoing and sustained role in underwriting NAWJ activities, and you envision them playing significant roles as regards planning and sponsoring events at the Boston conference. You have indicated that Westlaw would underwrite the cost of food and beverages at the reception and that one or the other would likely sponsor the awards dinner. Their corporate logos would be displayed, as is the case at annual bar association events that they help sponsor, at various venues during the conference. There is a difference, however, between an annual bar association conference and a conference organized and planned by and predominantly for judges. The concerns posed by such advertising and sponsorship at a judge's conference are similar to the issues raised by the display of courthouse flags discussed in CJE Opinion 89-1. Although the Code makes specific allowance for products both companies provide to judges for use in their official duties, see Section 4 D (5) (a), no similar exception appears elsewhere in the Code. Moreover, both corporations are engaged in businesses that may bring them before the courts. (4) There is, therefore, no sound reason for treating them differently from other business entities insofar as your treatment of their contributions is concerned.
Second, you have asked whether financial contributions by NAWJ's national office in the amount of $30,000 or more may be made available to Massachusetts judges in connection with conference planning. The committee believes that nothing in the Code would prohibit your use of the national organization's funds for planning, as long as you observe the guidelines and requirements applicable to other contributions outlined above.
In summary, the committee is of the opinion that you may participate in planning for an NAWJ annual conference in Boston, that you may participate in planning for fundraising for the conference, and that you may personally solicit funds for the conference provided you limit your solicitation to judges over whom you have no supervisory or appellate authority. In order to avoid the kinds of concerns at which Section 2 B of the Code is aimed, you should take whatever steps are necessary to avoid learning the identities of contributors to the event, other than judges whose contributions you, personally, are free to solicit. Creation of a "friends committee" to carry out the actual solicitation is an appropriate way to insulate yourself from the identities of the contributors, provided that those contributors are not disclosed to you or publicly identified in program brochures, banners, or materials. Creation of the friends committee itself should be carried out carefully to insure adherence to the requirements of Canon 2. Finally, the committee believes that you must observe carefully the line between planning for fundraising and fundraising itself if the latter is of a type that Section 4 C (4) forbids.
(1) The committee cannot render an opinion on questions relating to the conduct of persons other than the requesting judge. See S.J.C. Rule 3:11 and Rule 3 of the Rules of the Committee on Judicial Ethics. Accordingly, while this opinion may inform the conduct of your colleagues, this committee cannot offer them any formal advice or guidance.
(2) Your letter does not disclose how the friends committee proposes to solicit the giveaways. It could be that the anonymity requirements would not apply, or would not apply with equal force, if, for example, the committee simply solicited some State convention bureau that had a list of donors who already had expressed a willingness to give small gifts to any conventioneers in Boston. Without further details, however, the committee cannot provide you with an opinion on that point.
(3) If the bidder group is composed of people who would not be able to solicit for bids or contributions, then the auction itself should be conducted in a manner that preserves the anonymity of bidders and avoids coercion to bid.
(4) An online search disclosed 159 State and Federal cases in which West Publishing Company has appeared as a party since 1993; and 27 cases in which Reed Elsevier, Inc., the Lexis-Nexis parent, has appeared as a party.