You are a judge in the Trial Court and you seek an advisory opinion concerning an invitation you have received to become involved in a television program.
A producer at a major company has made a proposal for a nationally broadcast weekly television show that would focus on litigation and, specifically, whether civil litigants should elect trial by jury or a trial by a judge. If the parties opt for a jury, a judge would preside and instruct the jurors on the applicable law; your inquiry does not indicate who would play the role of the jurors. If the parties waive a jury, the judge would decide the case. The matters to be tried would be real disputes between actual parties who will agree in advance that any decision by either judge or jury will be final and binding. Plans call for taping of the programs on weekends outside the jurisdiction of Massachusetts.
You have been asked to audition for the role of the judge. You have asked the committee's opinion on whether you may audition for the role, and, if chosen, whether you may, as an independent contractor, appear in this televised courtroom show. You have also asked whether you may serve in a part-time consulting role for the show "to help analyze and interpret information, ensure the accuracy of legal terms and the likelihood of outcomes without an on-air presence." You indicate that if you obtain the role and weekend taping is not possible, you would use vacation time or would request a leave of absence from the Trial Court to perform.
Acting as the judge. The committee is of the opinion that, since the cases will be actual controversies between real parties who agree to waive any further recourse, the parties in essence would be agreeing to binding arbitration of their disputes. Section 4 F of the Code of Judicial Conduct states, however, that "[a] judge shall not act as an arbitrator or mediator in a private capacity."
While the committee obviously can express no opinion on whether you would or should be granted a leave of absence to act in the role of a judge in an ongoing television show, the committee directs your attention to G. L. c. 211B, §20, which provides that "[a]ll statutory requirements and rules of court pertaining to judges shall continue to be applicable to a judge while he is on leave of absence pursuant to this section." Thus, pursuant to the statute, S.J.C. Rule 3:09, the Code of Judicial Conduct, would continue to govern your actions even during a leave of absence.
Accordingly, the committee concludes that the Code prohibits you from appearing as a judge on television and actually deciding real cases and controversies.
Acting as a consultant. You have also asked whether you may serve as an independent contractor providing off-camera consultation. The committee addressed a similar inquiry in CJE Opinion 99-14. In that situation, the committee advised that a judge could provide part-time consulting services during out-of-court hours to a television production company that was creating a show depicting a fictional juvenile court judge. In Opinion 99-14, the committee based its opinion on the understanding that the requesting judge would be engaged in giving advice to the production company regarding the accuracy of legal terms, concepts, outcomes, and the like used in the various scripts, and would not be providing advice as to the nonfictional legal consequences of following any particular course of action in connection with the program's production.
As you have couched your request for advice in similar language, the committee will assume that your advice would be of a similar nature, even though the program you would advise would not be scripted, as was the program in Opinion 99-14. Further, you have indicated that any compensation you receive would not exceed what a person who is not a judge would receive for the same services.
Canon 4 of the Code requires that a judge's extracurricular activities do not conflict with his judicial obligations. Section 4 B permits a judge to "speak, write, lecture, and teach concerning legal and nonlegal matters and . . . [to] participate in legal and nonlegal activities." The commentary to Section 4 A, which governs extrajudicial activities in general, cautions that the appropriateness of undertaking such activities "must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial.
"Section 4 D (1) further provides that "[a] judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, that may interfere with the proper performance of the judge's judicial position, [or] that may reasonably be perceived to exploit the judge's judicial position." And Section 4 D (2) prohibits a judge from serving, "with or without remuneration, as an officer, director, manager, general partner, advisor or employee of any business."
As in Opinion 99-14, the committee believes that your consulting off-camera, as you describe it, would not detract from the dignity of your judicial office. Nor would it interfere with your judicial duties if your part-time work were limited to weekends.
As you describe your participation as an independent contractor, the committee concludes that you would not be engaged as an "employee" of a business within the meaning of Section 4 D (2). If, as in Opinion 99-14, your advice to the production company is designed to ensure that the programs will use correct legal terms and concepts and otherwise appear realistic, then the committee is of the opinion that you would be acting in an educational role to assist the producers in portraying correctly the rule of law, rather than acting as the type of advisor who would be giving financial, strategic, marketing, or legal advice to the production company in the conduct of its business. The committee is of the view that the Code intends to prohibit the latter kind of acting as an advisor, and that Section 4 D (2) is not implicated in your participation as an off-camera consultant.
That said, the committee directs your attention to Section 4 G of the Code, which states that "[a] judge shall not practice law." The committee cautions you against giving any advice that would likely be used to decide real cases or controversies. Real cases and controversies were not at issue in Opinion 99-14, and providing such advice may put you at risk of practicing law, which the Code prohibits.
As to your concern whether your name and position may be used in the credits of the show, Section 2 B states that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." Should you decide to pursue an off-camera consulting role with the show, therefore, you may not permit the use of your name or position as a member of the Massachusetts judiciary in the credits or in any promotional materials without violating Section 2 B.
Conclusion. In sum, you may not perform in the televised role as a judge. You may consult in the manner you have described, however, provided your participation does not interfere with your duties as a judge or amount to the practice of law. You may receive compensation for your consultation in an amount not greater than one who is not a judge would be paid, and you must report any such income as required in Section 4 H. If you serve as a consultant, you may not permit your name or position as a Massachusetts judge to be used in the credits or in any promotion of the show.