Opinion  CJE Opinion No. 2014-2

Date: 05/15/2014
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.

Contact   for CJE Opinion No. 2014-2

Committee on Judicial Ethics

Table of Contents

Attending and Presenting at a Regional Educational Drug Court Conference

You are a chief justice of a Department of the Trial Court who has requested an opinion from the Committee as to whether you and the judges in your department may attend and present at a regional educational drug conference held by the New England Association of Drug Court Professionals (“NEADCP”) in your capacity as members of a drug court team.  While your participation would be consistent with the Code’s emphasis on education and the improvement of the legal system, the involvement of certain sponsors raises the possibility of an appearance of partiality (1).  For the reasons discussed below, however, the Committee concludes that in the circumstances presented here the appearance of partiality does not represent a substantial concern.

I.  NEADCP and the Conference
Citing its website, www.neadcp.org, you state that NEADCP’s purposes include, in part, providing a communication network for New England drug court professionals; sharing educational, research, and therapeutic information on best practices in drug court programs; providing technical assistance in accessing funding and developing legislation for drug court programs; providing a forum for sharing ideas and concerns relevant to drug court professionals; facilitating the development and enhancement of the New England drug court systems by developing strategic plans for drug court program growth; and improving the law, practice, procedures, and administration of drug courts (2).  NEADCP does not appear to be an independent legal entity but, rather, appears to be a regional branch of the National Association of Drug Court Professionals (“NADCP”) which is organized at the national level (3).  See, e.g., http://www.neadcp.org/#!courts/c1mgl (linking to NADCP website to locate drug courts across United States) (last viewed April 9, 2014).

Participants must pay a registration fee to attend the NEADCP conference (“2014 Conference”).  According to the brochure for the September 2013 Conference (4), presenters included three justices of the Massachusetts Trial Court, justices of other New England trial courts, mental health professionals, the Middlesex County Sheriff, and defense attorneys. 

NEADCP will receive funding for the 2014 Conference from a mix of public and private resources.  Just as with the September 2013 Conference, NEADCP will acknowledge the funding it receives for the 2014 Conference by listing the sponsors in its program brochure, “along with contribution levels (‘Platinum Level,’ ‘Gold Level,’ etc.) for all sponsors and exhibitors.”

Sixty percent of funding for the 2014 Conference will come from federal and state funding.  Among the federal sponsors listed in the September 2013 Conference brochure are the American Society of Addiction Medicine, the Federal Bureau of Justice Assistance, and the Substance Abuse and Mental Health Services Administration (5).  September 2013 Conference Brochure, at 2.  Among the state sponsors are Connecticut, Maine, New Hampshire, Rhode Island, and Vermont agencies in addition to the Massachusetts Department of Mental Health, the Massachusetts Department of Public Health’s Bureau of Substance Abuse Services, and, of note, the Massachusetts Trial Court (6).  Id.  

The 2014 Conference will also receive funding from private sources which you identify in your letter as “both for-profit and not for profit, such as the Gardiner Howland Shaw Foundation, part of whose mission is the rehabilitation of adult and juvenile offenders, . . . []Massachusetts Organization for Addiction Recovery[], and various drug companies . . . and treatment providers, including local providers such as AdCare Hospital of Worcester, Inc (7).”  The private sponsors also include “various drug companies (whose products could be used by probationers in drug court) and treatment providers . . . . It is conceivable that some probationers would be referred to some of the local provider/sponsors as a result of the probationers’ participation in drug court, and some probationers who will still be on probation at the time of the [2014 C]onference are likely currently receiving services from some of these providers.”  (Emphasis in original).  NEADCP receives some of this funding as general contributions to NEADCP itself; alternatively, you write that “some entities will be paying to set up exhibits at the [C]onference.  These exhibits will be physically removed from the [2014 C]onference presentation area and will be stationed elsewhere in the building.”
You write that NEADCP will print a disclaimer in its 2014 Conference brochure that will state, “‘NEADCP does not endorse any products from exhibitors or sponsors.  In addition, the judges and the other participants attending the conference do not endorse any sponsor or exhibitor products[.]’”  The September 2013 Conference brochure did not include a disclaimer.  The July 2013 NADCP conference brochure, however, did contain the following two disclaimers:  (1)“NADCP welcomes the diversity of methods and opinions shared through the interactive format of this conference.  NADCP does not necessarily endorse all of the viewpoints expressed[;]” and (2) “The views expressed in written conference materials or publications and by speakers and moderators at [Health and Human Services]-sponsored conferences do not necessarily reflect the official policy of the Department of Health and Human Services or the Department of Justice; nor does mention of trade names, commercial practices, or organizations imply endorsement by the U.S. Government.”  July 2013 NADCP Conference Brochure, at 1, 3 (8).

II.  Drug Courts  
As part of its June 2013 Strategic Plan, the Trial Court identified the expansion of specialty court sessions as an area of improvement.  See Trial Court Strategic Plan (June 2013), at 5, 32-33.  Currently, drug courts are the most common specialty courts in the Trial Court, and the Trial Court’s immediate goal is to add five new drug courts in the next year, with the long-term goal of having a drug court in “all high need and at risk communities . . . .”  Your department of the Trial Court “will be prominently involved in the expansion of specialty courts.”

You explain that “[d]rug courts follow a standardized model, and their demonstrated utility in reducing recidivism is thought to be dependent on adherence to the model.  In contrast to the usual treatment of defendants and probationers, drug court programs are usually managed by a multi-disciplinary team.”  This team approach is essential to the success of drug courts, and a critical component of that success is the drug court team’s ongoing education and training.  The 2014 Conference constitutes one form of education and training, “and its regional aspect offers an opportunity for the exchange of ideas and best practices of neighboring states.”  Moreover, attending the 2014 Conference “will help to further the goals of the Trial Court by helping additional courts establish drug court sessions, and by strengthening the effectiveness of the ones already in existence.”

III.  Analysis  
“As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the integrity of the legal profession and to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice.”  Commentary to Section 4B.  To that end, Section 4B of the Code permits judges to “speak, write, lecture, and teach concerning legal and nonlegal matters and [to] participate in legal and nonlegal activities.”  NEADCP’s stated purposes demonstrate that its 2014 Conference will fall within the type of avocational activity in which the Code encourages participation (9).  See, e.g., CJE Opinion 2010-1 (concluding that, notwithstanding issue of funding, participation in drug court conference was proper because conference was “designed to include participation with the range of views relevant to a drug court, including prosecution, defense, treatment, prevention and the judge’s perspective” and conference materials did not suggest that judge’s participation “would align [him] with a particular point of view”).

Participation pursuant to Section 4B, however, is expressly “[s]ubject to the requirements of the Code,” which include Section 4A(1), requiring a judge to conduct his extrajudicial activities so as not to “cast reasonable doubt on the judge’s capacity to act impartially as a judge;” Section 2A, requiring a judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary[;]” and Section 2B, prohibiting a judge from either “lend[ing] the prestige of judicial office to advance the private interest of the judge or others[,]” or “convey[ing] or permit[ting] others to convey the impression that they are in a special position to influence the judge.”  See CJE Opinion 2011-1 (noting Code’s limitations on judge’s conduct under Section 4B).  Consistent with those provisions, the Committee has previously indicated that “even where the goal of an event is a laudable one, attendance by judges . . . at an event . . . sponsored by those who appear in the courts of the Commonwealth raises two interrelated concerns:  first, whether the judicial participation operates to advance the private interests of others . . . ; second, whether judicial participation creates an appearance that . . . [the] sponsors are in a special position to influence the participating judges.”   CJE Opinion 2007-6 , citing CJE Opinion 2007-4 .  The likelihood that a for-profit sponsor of the 2014 Conference would on occasion appear in Massachusetts courts triggers those interrelated concerns.  See CJE Opinion 2003-18 (considering whether judge’s participation in project would “convey the message that the prestige of [judge’s] office is being used to advance a private or commercial interest”); CJE Opinion 2003-12 (“Judicial participation in activities that are privately ‘sponsored,’ particularly those ‘sponsored’ by entitles frequently involved in litigation, presents very delicate issues and is of doubtful propriety.”).

The Committee has addressed sponsorship issues in previous opinions, noting a distinction between sponsors “that have recurring, substantial business in the courts of the Commonwealth[,]” CJE Opinion 2009-1 , CJE Opinion 2007-6, and sponsors that are “comprised of a large and diverse body . . . .”  CJE Opinion 2011-1, citing CJE Opinion 2007-4.  Participation in an event involving the former would raise an appearance of impropriety, see CJE Opinion 2009-1, CJE Opinion 2007-6, while participation in an event involving the latter would not.  See CJE Opinion 2011-1.  The 2014 Conference’s sponsors will consist of a large and diverse body, including federal and state agencies and organizations as well as private for-profit and non-profit organizations.  Further, the September 2013 Conference brochure demonstrates that, instead of promoting a particular agenda, the NEADCP attempts to provide broad-based presentations that represent the positions of the health care industry, the judiciary, the prosecution, and the defense.  See September 2013 Conference Brochure, at 5-6; see, e.g., CJE Opinion 2010-1 (noting that judge’s participation in drug court conference would not align him “with a particular point of view” because conference would “include participants within the range of views relevant to a drug court, including prosecution, defense, treatment, prevention, and the judge’s perspective”).

The private organizations, however, will include treatment providers and drug companies, some of which provide or may provide services or products to drug court probationers.  While there is no indication that these providers and companies are involved in substantial and recurring litigation in Massachusetts courts, the Committee views this connection between the 2014 Conference sponsors and the drug courts as substantial.  See, e.g., CJE Opinion 2009-1 (noting that, of several sponsors, “one [sponsor] was an established Boston law firm with considerable ongoing business in the courts of the Commonwealth” and “other [sponsor] was a consulting firm that is frequently involved in litigation in Massachusetts courts”).
Notwithstanding the presence of these particular sponsors, the Committee recognizes that attendance and participation at the 2014 Conference will benefit not only your drug court team but also the Trial Court as it continues to implement its Strategic Plan.  See, e.g., CJE Opinion 2007-4 (“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.”).  For this reason, your situation does not call for the same outcome as in situations involving fund raisers or events to honor judges.

For example, in CJE Opinion 2009-1, the judge asked the Committee if the Code permitted him to attend a function where he was to be recognized for his contributions to the law.  Of the several event sponsors, two had substantial, recurring business with the court in which the requesting judge sat.  Id.  The Committee concluded that the presence of those two sponsors, “albeit in collaboration with others,” precluded the judge from attending because of the serious doubt that could arise about the judge’s “ability to handle impartially a matter in which one side was represented or assisted by a firm that had publicly sponsored a large public function at which the judge had received a major award.”  Id.; see, e.g., CJE Opinion 2014-1 (concluding for same reason that judge could not attend bar organization event that included as sponsors law firms with substantial business before judge’s court).  Here, you will be an attendee at an event designed not to honor a member of the judiciary but, rather, to foster the public good by improving the legal system and the administration of justice, with drug courts as its specific focus.

Your attendance and participation at the 2014 Conference is also different from the situation in CJE Opinion 2006-7 where the Committee concluded that the Code prohibited the requesting judge from serving as a board member of “a health care provider that focuse[d] on treatment for substance abusers and those with mental health issues” because the provider was “very supportive of drug courts in Massachusetts and ha[d] a contract to provide services to at least one court in the Commonwealth.”  Here, your connection to the private sponsors outside of court will not be a direct, ongoing obligation but rather will be limited to your attendance and participation at an event that will list those entities in the event brochure.

The Committee believes that the purpose of the 2014 Conference in combination with a disclaimer in the 2014 Conference brochure will mitigate any appearance of impropriety that may result from the presence of sponsors that have substantial business with the Trial Court drug courts.  The disclaimer that you indicate will appear on the 2014 Conference brochure, however, is not forceful enough to remedy any appearance of impropriety the presence of these sponsors may cause.  Conversely, the disclaimer that NADCP utilized in its July 2013 conference brochure is more emphatic and specific to a governmental entity.  The following variation on that language in combination with the disclaimer that NEADCP intends to include in the 2014 Conference brochure would eliminate any appearance that your participation violates the Code:

“NEADCP, the judges, and the other participants do not endorse any products from exhibitors or sponsors.  In addition, the views expressed in written conference materials or publications and by speakers and moderators do not necessarily reflect the official policy of NEADCP, the judges, and the other participants; nor does mention of trade names, commercial practices, or organizations imply endorsement by NEADCP, the judges, and the other participants.”

See, e.g., CJE Opinion 2007-4 (suggesting steps requesting judge should take “as a condition of [judge’s] participation” because, although requesting judge was “not in control of the event” he sought to attend, “the Code requires a judge to tell others of the limitations on judicial participation in activities that those others are carrying out”).  This disclaimer should feature prominently in the 2014 Conference brochure.  See, e.g., id.

III.  Conclusion
The Code encourages judges to engage in legal and nonlegal activities that contribute to the development and improvement of the law, the legal system, and the administration of justice.  Your attendance and presentation at the 2014 Conference is consistent with this aspect of the Code as you work with your team to improve and increase drug court sessions in the Trial Court.

The overarching provisions of the Code, however, remain in force, and those who attend and participate in the 2014 Conference must act in a way that promotes public confidence in the integrity and impartiality of the judiciary, and must be sensitive not to advance the private interest of oneself or others, or to convey or permit others to convey the impression that they are in a position to influence the judge.  The involvement of certain private sponsors of the 2014 Conference triggers concern under these Code provisions because of the substantial business they conduct with the drug courts, but the presence of a strong disclaimer in the 2014 Conference brochure will neutralize any appearance of partiality that may arise.

Contact   for CJE Opinion No. 2014-2

(1) This opinion applies not only to you, but also to the judges in your department who plan to attend the NEADCP drug conference.

(2) The September 2013 Conference brochure identifies two Massachusetts judges as members of NEADCP’s Board.  The same two judges appear on NEADCP’s website as members of the 2014 Board.  See http://media.wix.com/ugd/9054e0_fc3a962f272d41b09ff5d1dcfba9a0db.pdf   (last viewed April 9, 2014); see, e.g., New Mexico Advisory Opinion 10-04 (concluding that judge could be member, officer, or director of New Mexico Association of Drug Court Professionals as long as judge did not participate in fund raising or solicitation activities, organization and its members did not appear before judge regularly, and commitment did not interfere with ability to discharge judicial duties); New York Advisory Opinion 05-155 (concluding that judge could serve on committee of National Association of Drug Court Professionals provided that judge’s service would not affect performance of his judicial duties).

(3) NADCP “is a national non-profit 501(c)(3) corporation founded in 1994 by pioneers from the first twelve Drug Courts in the nation.”  http://www.nadcp.org/learn/about-nadcp (last viewed April 9, 2014).

(4) As the materials for the 2014 Conference are not available, you have provided the Committee with the brochure from the most recent NEADCP conference which took place in September 2013.  See, e.g., CJE Opinion 2007-6.  You have also provided the Committee with the link to the July 2013 NADCP conference brochure.

(5) The American Society of Addiction Medicine is a 501(c)(3) organization (https://www.asam.org/about-us/faqs, last viewed April 9, 2014); the Federal Bureau of Justice Assistance is a component of the United States Department of Justice’s Office of Justice Programs (https://www.bja.gov/About/index.html, last viewed April 9, 2014), and has provided grant money to Massachusetts (http://www.iir.com/bja-state-fact-sheets/PDF/Massachusetts_State_Profile_Sheet.pdf, last viewed April 9, 2014); and the Substance Abuse and Mental Health Services Administration is an agency within the United States Department of Health and Human Services (https://beta.samhsa.gov/about-us/who-we-are, last viewed April 9, 2014).

(6) The Trial Court’s involvement in the NEADCP was not a factor in the Committee’s decision.

(7) The Massachusetts Center for Health Information and Analysis identifies AdCare Hospital of Worcester, Inc., as “a for-profit psychiatric and substance abuse hospital . . . .”   http://www.mass.gov/chia/docs/r/hospital-profiles/2012/2012-non-acutes/adcareofworchester.pdf (last viewed April 9, 2014).

(8) You note that “NADCP’s organizational funding is through a mix of public state and federal monies, not private sources. . . . [and] that recipient teams of certain federal grants, such as through SAMHSA [the Substance Abuse and Mental Health Services Administration], require attendance at the annual NADCP training conference.”  (Emphasis in original); see, e.g., CJE Opinion 2007-9 (describing federal grants from SAMHSA which required judicial participation in drug court training sessions).

(9) Your participation is also consistent with Section 3C(1)’s requirement that judges “maintain professional competence in judicial administration . . . .”

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