Opinion  CJE Opinion No. 2017-04

Date:	10/02/2017
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Participation in Cover Band and Business Band

You are a new judge and have asked whether your participation as a singer with two different bands is consistent with the Code of Judicial Conduct.(1)

The Cover Band: You state that you perform with a cover band comprised of attorneys, none of whom practices in your court department.(2) The members of this band perform for enjoyment and are uncompensated. The band has played at a variety of settings, including a political fundraiser, county bar association events, a Chamber of Commerce event, private parties for court personnel and lawyers, fundraisers for non-profit organizations, and informal social functions for lawyers and for the general public. You have stated that your participation does not interfere with your judicial duties.  

We first address whether you may perform at a political fundraiser. Rule 4.1 of the Code of Judicial Conduct imposes numerous restrictions on a judge's political activities because public confidence in the judiciary is eroded if judges are perceived to be subject to political influence or give the impression of favoring the interests of a political organization or candidate. As a judge, you may not attend political fundraisers, let alone perform at such an event.

We next consider whether you may perform at other venues.  The governing principles are found in Rules 3.1 and 3.7, which apply to a judge's extrajudicial activities. In general, judges are permitted to engage in extrajudicial activities to pursue an avocational hobby or interest, so long as the judge avoids any activities that are reasonably likely to interfere with the obligations of judicial office.

Rule 3.1 states that when engaging in otherwise permissible extrajudicial activities, a judge shall not:

(A) participate in activities that are reasonably likely to interfere with the proper performance of the judge's judicial duties;
(B) participate in activities that are reasonably likely to lead to recurrent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality; or
(D) engage in conduct that would appear to a reasonable judge to be coercive.

We also note that Rule 3.7(A)(6A) imposes additional restrictions on a judge who serves as a keynote or featured speaker at, receives an award or other comparable recognition at, is featured on the program of, or permits the judge’s title to be used in connection with the promotion of an event. We believe that the restrictions applicable to these featured roles apply to your performing with a band.  Rule 3.7(A)(6A) provides that a judge may have a featured role at a fundraising event only if the event is sponsored by an organization concerned with the law, the legal system, or the administration of justice, and that organization promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar.  Thus, you may perform at a fundraiser for a county bar association but not at fundraisers for non-general interest law-related organizations or non-law-related organizations. See Rule 3.7, Comment [4]. You may perform at non-fundraising events for such organizations, subject to the restrictions of Rule 3.1. See also Rule 3.7, Comment [1A].

You may perform at private parties hosted by or honoring lawyers from whose cases you would disqualify yourself because of personal friendship. You must assess all other invitations for private parties and informal social events in light of Rule 3.1. You must, for example, avoid accepting invitations to perform at private parties hosted by or honoring other lawyers who are reasonably likely to appear before you.  

Although you are not paid, you noted that band members may on occasion be offered a complimentary meal. A meal is likely not to be of substantial value as that term is defined by the State Ethics Commission. See Rule 3.13(B)(1). Moreover, a judge is allowed to accept reasonable compensation for extrajudicial activities permitted by the Code. See Rule 3.12 (noting that disclosure obligations may apply).

The General Business Band: You are also part of a "business band" based in Connecticut. The purpose of this band is to perform for a fee. You have performed with this band since February 2017. This band rehearses once per week, and your expectation is that it will eventually perform once each month. The band manager handles all the business arrangements, and the musicians are paid equally. You are paid as an independent contractor. On promotional materials, you are identified with a variation of your first name and your maiden name. No members of this band have any connection to the Massachusetts court system. You again state that your participation does not interfere with your judicial duties.

Your question requires us to consider whether this band is a "business entity" governed by Rule 3.11 or an extrajudicial activity governed by Rule 3.7.

The purpose of this band is to perform for a fee; it is not a group of musicians who primarily plays together for their own personal enjoyment and may occasionally perform for a fee. Because the purpose of the band is to generate revenue as a business, Rule 3.11 is applicable. This rule prohibits a judge from serving as "an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family."(3) This prohibition applies regardless of "the scope of the individual's involvement, the nature of the enterprise, the form of its organization, or even its possible location well beyond the judge's jurisdiction." See Geyh, Charles Gardner et. al., Judicial Conduct and Ethics, 5th ed. (LexisNexis 2013) at 7-18. The explanation for this per se prohibition is that there is a risk that active involvement with a business may lead to "(1) increased levels of actual or apparent partiality, (2) unacceptable interference with judicial duties, or (3) real or apparent exploitation of the judicial office." Id. at 7-21.

In light of our conclusion that this band is a business entity, we consider two additional questions raised by the facts you provided. First, you state that you are an independent contractor and receive a 1099 form. Rule 3.11 prohibits you for serving as an "officer, director, manager, general partner, advisor, or employee of any business entity." We do not believe the distinction between an employee and an independent contractor is relevant under Rule 3.11, however. That distinction is relevant primarily for tax and insurance purposes. Reasonably understood, Rule 3.11 prohibits a judge from serving as an independent contractor as well as an employee.

Second, you note that you would be willing to decline your share of payment. Whether this makes a difference is a close call, but we believe that the policies that underlie Rule 3.11 prohibit a judge from being an active participant in any form of business organized for profit, including as a volunteer, with one exception. The Code permits a judge to write or contribute to publications of for-profit entities, whether related or unrelated to the law. See Rule 1.3, Comment [4] (noting that special considerations arise in these circumstances). Other than this exception for publications, a judge is restricted from active participation in any business entity.(4)

You may continue to perform with the cover band subject to the restrictions for particular events noted above. You may no longer perform with the "business band."

(1) This opinion relies on facts you have provided the Committee of Judicial Ethics. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force and effect.

(2) One member of the band recently retired as a clerk magistrate in your court department.

(3) We note that the ABA Model Code of Judicial Conduct permits a judge to manage or participate in a business closely held by the judge or members of the judge's family. The 2003 Massachusetts Code of Judicial Conduct did not include a family business exception and the 2016 Code likewise includes a broad prohibition against judges engaging in off-the-bench compensated business activity.

(4) As noted, Rule 3.12 permits a judge to be compensated for extrajudicial activities permitted under Rule 3.7. See Letter Op. 2016-04 (concluding that judge whose avocation is photography may occasionally have photographs exhibited and for sale in a gallery's exhibition, but cautioning the judge that the scope of this activity must not become so extensive that he is conducting a business as a photographer).