| Date: | 04/10/2007 |
|---|---|
| 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.
You have asked the Committee on Judicial Ethics for advice on whether you may attend and be honored at an upcoming event to "celebrate Justices of Color" that is being sponsored by a consortium of certain law firms and other organizations that employ attorneys.
The materials you have provided to the committee indicate that the consortium is a group comprised of forty-six institutional members, including thirty-six law firms, four governmental entities, five large corporations headquartered in the Boston area, and one Statewide public interest advocacy group. Of the thirty-six law firms, twenty-seven are among the Commonwealth's largest.
The consortium was formed approximately twenty years ago with a stated mission to "support the efforts of [its] members to identify, recruit, advance and retain lawyers of color." In furtherance of its mission, the consortium, among other things, produces various events (both social and business-related) throughout the year. Each event is hosted by one of the organization's member firms on a rotating basis. The consortium's staff is housed in the offices of one of the member firms, also on a rotating basis.
The invitation letter you received states that the consortium "has the pleasure of celebrating you, other Justices of Color and your significant achievements at a reception in your honor hosted by" one of the organization's law firm members. The invitation further describes the event as "a special event in your honor to acknowledge the many contributions you have made to the Massachusetts Judicial System." You are aware that a number of other judges of color have also received similar invitations to be in the group of honorees. The invitation letter you received further states that the consortium has "invited lawyers of color, leadership from all of our member organizations, Bar affiliation leaders, managing partners and all who support our goal for a more diverse Massachusetts legal community" to attend the event. A formal invitation card, presumably sent to all of those just listed, asks that the recipients "[p]lease join the [the consortium] in honoring Justices of Color." That invitation lists the date, time, and location of the event. The location is at the offices of one of the organization's law firm members, which the invitation identifies as the event's "host."
Consistent with the consortium's stated mission, the event's aim is to "encourage practicing lawyers of color to stay in this legal community and help advance their legal career by seeking to join the judicial elite that serve our Commonwealth." Few can doubt the desirability of that goal. Nevertheless, attendance by judges as guests of honor at an event produced and sponsored by those who appear in the courts of the Commonwealth raises two interrelated concerns under the Code of Judicial Conduct -- first, whether the judicial attendance serves to advance the private interests of consortium members or of the host firm, and, second, whether it creates an appearance that the members or the host firm are in a special position to influence the attending judges. Both of these concerns are reflected in Section 2 B of the Code, which states, in pertinent part, as follows:
"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."
In applying Section 2 B to the upcoming consortium event, it is useful to focus on the consortium members and the host firm separately. Dealing first with the members, the committee makes two assumptions based on the contents of the materials you have provided. The first is that membership in the the consortium is broadly available to all greater Boston law firms, legal services organizations, governmental legal organizations, and organizations of corporate counsel who wish to join. The second is that invitations to the event have been broadly sent to representatives of all segments of the bar in the greater Boston area. With these assumptions in mind, the committee is of the opinion that your attendance as a guest of honor would not convey the appearance that member firms are in a special position to influence you or other judicial attendees, nor would your attendance further their private interests. Even as currently composed, the consortium is sufficiently large and diverse that it has many of the characteristics of a bar association. Given the size and diversity of the group, one can expect that many litigation matters in which one member is involved also would involve other members on opposite sides. In light of that size and diversity, partners and associates of the member firms undoubtedly serve on governing boards of numerous Boston legal entities that represent a wide array of issues and interests that make their way into litigation in the Commonwealth's courts. The event's primary focus is on the larger public good. While one cannot gainsay that a private benefit may flow from participation in the group or this event, that private benefit is neither the event's principal focus nor the principal benefit the event is likely to produce. Under all those circumstances, and while the question is a close one, the committee concludes that judicial attendance at the event does not run counter to the prohibitions contained in Section 2 B of the Code.
Hosting of the event by a consortium member firm poses different issues, although those issues arise from the same Code section. In a number of contexts in the recent past, the committee has said that judicial attendance at events sponsored in whole or in part by individuals or law firms that may appear before the attending judges is inconsistent with the Code. See, e.g., CJE Opinion 2002-12 (stating that judges should not attend a law school event designed to honor graduates who had become judges, where costs of the event were to be paid by individual sponsors identified in event booklet); CJE Opinion 2003-1 (stating that judge should not receive an award at Chamber of Commerce ceremonial luncheon sponsored by publicly identified businesses and legal firms); CJE Opinion 2003-18 (concluding that, although interview with a judge could appear in book prepared as part of city's anniversary celebration, sponsors of the celebration should not be identified in book); CJE Opinion 2004-3 (dealing with displays of corporate logos at national gathering of judges). In each of those situations, however, sponsorship of the event was a one-time occurrence, and not, as in this case, the product of rotating sponsorships designed to facilitate an organization's integrated effort to advance a broad public interest. That distinction, although it is important, does not by itself eliminate all of the problems under Section 2 B that may flow from a single firm's hosting an event designed to honor sitting members of the judiciary before whom the firm may appear.
In order to eliminate those problems, the committee believes that, as a condition of your participation, four steps should be taken by the consortium and the hosting firm, all of which are designed to ensure that the event's focus remains on the public mission the event is designed to serve and does not shift to the hosting firm's connection to an event designed to honor sitting judges before whom it may appear. First, the sponsoring firm should not use its role in this event, or the names or images of the judge honorees, as part of any written, oral, or electronic (e.g., web site) advertising, promotional material, or other client solicitation efforts. (A sponsoring firm's publication of its participation in the consortium in general would not raise a concern.) Second, some statement should be made at the event itself that the firm is hosting the event as part of group's agreed-upon protocol for rotating responsibility for hosting consortium events among consortium members. Third, while written and oral communications may thank the firm for hosting the event, the thanks should be modest and discreet, consistent, that is, with those given to the host of any social function, and should not highlight any particular nexus between the firm's role as host and the honored judges. Finally, the consortium should use its best efforts to see that any media or other coverage of the event by independent entities features the consortium's role in the event instead of concentrating on the role of the hosting firm.
The committee recognizes that you are not in control of the event. In other contexts, however, the committee has advised that the Code requires a judge to tell others of the limitations on judicial participation in activities that those others are carrying out. See CJE Opinion 90-1 (advising that judge had an obligation to object to former law firm's use of judge's name and position in advertising materials); CJE Opinion 2000-6 (advising that judge was obligated to tell a university that it could not use judge's name and likeness in advertising materials). The committee believes that the same requirement applies here, and that you must therefore tell the consortium of the limitations contained in the preceding paragraph. In that regard, the conditions seem entirely congruent with a statement by the consortium's executive director in the materials you provided, that "no one firm would be singled out and in fact all will be congratulated for having the foresight to become members of the [consortium] and for the [consortium] to have the wisdom to plan this honor for an extremely important segment of our legal community."
In sum, the committee is of the opinion that your appearance as a guest of honor at the event you have described is permitted by the Code of Judicial Conduct, provided you inform the consortium of the four conditions specified above, which are designed to keep the event's focus on the consortium's overall goal and not permit that focus to shift to the hosting firm's role in producing an event designed to honor sitting judges.
