Opinion  CJE Opinion No. 2025-02

Date:	11/26/2025
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Extrajudicial Activities: Serving as a Judicial Trustee for the Massachusetts Bar Foundation

The Committee on Judicial Ethics provides this advice in response to your request for an updated opinion regarding the permitted scope of judicial participation as a trustee of the Massachusetts Bar Foundation (MBF). The Committee previously addressed service as a Judicial Trustee in Opinion No. 2004-8, issued under the 2003 version of the Code of Judicial Conduct. In 2016, a new Code was adopted, which implemented several significant changes, including to provisions that are directly applicable to judges seeking to engage in extrajudicial activities. Because we feel that this advice would be useful to other judges, we have opted to publish it in accordance with SJC Rule 3:11(2)(D)(i).

I. Background^[1]

The MBF is a 501(c)(3) organization. It “represents the commitment of the lawyers and judges of Massachusetts to improve the administration of justice, to promote an understanding of the law, and to ensure equal access to the legal system for all residents of the Commonwealth, particularly those most vulnerable.” MBF 2025/2026 IOLTA Grants Program, Request for Proposals (“2025/2026 IOLTA RFP”). The MBF is independently organized and governed separately from the Massachusetts Bar Association, of which it is the philanthropic partner. The MBF receives money from IOLTA revenues (26% of the Commonwealth’s IOLTA funds),^[1] Fellows’ dues, and donations. It appears that its endowment funds are invested in fixed income securities, equity securities, and real estate. See MBF Form 990 Filing (December 31, 2021) (“Form 990”) at p. 32; 2025/2026 IOLTA RFP.

1. Grant Programs. The MBF administers various grant programs to give effect to its mission. Its primary grant program is the IOLTA Grant Program through which the MBF distributes the portion of IOLTA funds it has been allotted “to nonprofit organizations in Massachusetts whose programs either provide civil legal services to low-income clients or improve the administration of justice. These grants support the delivery of critical legal assistance to individuals and families working to overcome great obstacles related to housing instability, domestic violence, immigration, education access, health care access, economic insecurity, and more.” IOLTA Grants Program Webpage, https://www.massbarfoundation.org/iolta-grants-program. Occasionally, public agencies established by government entities will receive funding for pilot programs that will ultimately receive public funding. No funding is available to individuals. The MBF does not support any social service components of applicants’ programs. MBF grants also cannot be used for fundraising activities related to political, endowment, scholarship, or capital campaigns. Grant applications are reviewed by the Grant Advisory Committee, comprised of MBF Trustees and Fellows. See 2025/2026 IOLTA RFP. It appears that judges have served as members of the Grant Advisory Committee. See MBF 2023 Gratitude Report at p. 9. The Board of Trustees makes the final funding decisions. Successful applicants are required to sign a contractual grant agreement. The process is described as “highly competitive,” and awards are often for less than the full amount requested. See 2025/2026 IOLTA RFP.
   
   Grants in the 2024/2025 cycle totaled $4.8 million (individually ranging in size from a few thousand dollars to approximately $300,000) and were awarded to 85 bar associations, advocacy groups, legal services providers, and other law-related organizations across the Commonwealth. Greater Boston Legal Services received the largest grant awarded in 2024/2025 with the average grant being $40,000. See 2024/2025 IOLTA Grants Program Awards; “MBF Awards $4.8 Million in Grants for Legal Aid Programs Across Massachusetts,” https://www.massbarfoundation.org/news/24-25grantawards. For the 2025/2026 grant cycle, the MBF published a statement of grant priorities that established priorities for civil legal services to low-income clients and for administration of justice programs. See 2025/2026 Statement of IOLTA Grant Funding Priorities. The MBF awarded grants totaling approximately $6 million in this cycle. See 2025/2026 IOLTA RFP.
   
   In addition to IOLTA grants, the MBF also awards $8,000 stipends to law students who will intern at legal aid organizations (Legal Intern Fellowships), $8,000 stipends to law students with limited financial means who have full-time judicial internships within the Massachusetts state court system (Gants Judicial Scholarship),^[2] and other grants that are consistent with the MBF’s overall mission of increasing access to civil legal aid, improving the administration of justice, or promoting an understanding of the law. See Legal Intern Fellowship Program Webpage, https://www.massbarfoundation.org/lifp; Gants Judicial Scholarship Webpage.
2. Society of Fellows. The “MBF Society of Fellows is a membership organization of Massachusetts attorneys and judges who are committed to giving back to the profession and supporting legal services.” MBF Fellows Webpage, https://www.massbarfoundation.org/fellows. The MBF’s Bylaws state that “Fellows are members of the MBA who are nominated by the Trustees” and that “[t]he number of Fellows cannot exceed 5% of the total number of attorneys admitted to practice in Massachusetts.” See MBF Bylaws, Article I(1). However, a nomination form can also be found on the MBF website and is available to anyone who would like to nominate a Fellow. MBF Fellow Nomination Form, https://www.massbarfoundation.org/nominate. Additionally, it appears that anyone wishing to become a Fellow may do so by making a financial pledge and initiating payment via the MBF’s website or regular mail. See MBF Fellows Webpage; MBF Society of Fellows Pledge Form. Neither the nomination nor pledge form seeks additional information about the would-be Fellow’s professional leadership or commitment to the MBF’s mission. The Committee has been informed that prospective Fellows must be in good standing with the Massachusetts Board of Bar Overseers and that Trustees must vote in favor of new Fellows. There are currently no published guidelines establishing criteria for evaluating prospective Fellows apart from the limitation on the total number of Fellows.
   
   Fellow contribution amounts are set by the Trustees. Fellows who pledge $1,500, payable in annual installments of at least $150, are referred to as “Foundation Fellows.” “Leadership Fellows” include those who pledge $2,500 (Louis D. Brandeis Fellows), $5,000 (Oliver Wendell Holmes Fellows), and amounts from $10,000 up to $75,000 (President’s Circle Fellows, Bronze, Silver, Gold, and Platinum Levels). Once a pledge amount has been paid in full, Fellows are designated “Life Fellows” of the MBF. See MBF Fellows Webpage. Life Fellows “enjoy the same privileges of membership as Fellows, except that a Life Fellow shall not be considered in computing the limitation on the number of Fellows to be admitted to membership.” See MBF Bylaws, Article I(1)(b). In addition to providing financial support for the MBF and its mission, Fellows have opportunities to participate in the annual grantmaking process, become active in MBF committee work or governance, and attend networking events. See MBF Fellows Webpage. Non-Trustee Fellows also may vote on the election of new officers and Trustees. See MBF Bylaws, Article I(10).
   
   A list of MBF Fellows is available on the MBF’s website. See MBF Fellows Directory, https://www.massbarfoundation.org/meet. It shows the Fellows’ names, pledge level, company or employer, city, state, and county. Fellows who are judges are denoted with “Hon.” before their names. If a judge is retired, the designation “(Ret.)” is included. The list shows which Fellows have satisfied their pledges, as they are noted as Life Fellows at various levels. It appears that there are currently approximately 1,375 Fellows in the organization, including approximately 150 judges (active and retired, state and federal). Id.
3. Law Firm & Corporate Sponsorship. The MBF also provides opportunities for law firms and corporate partners to “receive year-round publicity…while increasing access to justice for all” by making contributions at various levels that correspond to different levels of exposure. Law Firm & Corporate Partners Program Webpage, https://www.massbarfoundation.org/sponsor. Depending on the contribution level, the MBF will “work to promote [the] business through [the MBF’s] website, social media, email communications, publications, events, and activities in the legal community.” Id. A scrolling banner at the bottom of each page on the MBF’s website displays the names of the law firms and corporate partners and indicates the level at which each has contributed. See, e.g., MBF Fellows Webpage.   
4. Board of Trustees. The MBF’s business is managed by twenty Trustees, who exercise all powers of the MBF. The Board of Trustees includes four “Judicial Trustees.” Trustees may serve up to two consecutive four-year terms. They receive no compensation but may be reimbursed for reasonable expenses actually and necessarily incurred in performing their duties. MBF Bylaws, Article II(1).
   
   Among other duties, Trustees:

• Make final grant award decisions.  See 2025/2026 IOLTA RFP.
• Manage the MBF’s funds and assets, and have sole and full charge of the investment and administration thereof.  MBF Bylaws, Article V(10).
• Set policies regarding Fellows’ annual contributions.  Id., Article I(1)(a) & (c).
• Schedule the Annual Meeting and specify the purposes for which it is to be held.  Id., Article I(2).
• Vote to fill any Trustee vacancy or to remove any Trustee or Officer.  Id., Article II(1)(c) , Article II(4), & Article III(5).
• Are expected to attend all MBF meetings and events.  Id., Article II(5).

II. Committee on Judicial Ethics Opinion No. 2004-8

The Committee issued Opinion No. 2004-8 under a prior version of the Code to address service as a Judicial Trustee for the MBF in light of the 2003 amendments to the Code. This opinion summarized the workings of the MBF and the role of the Trustees at that time. The Committee concluded that the MBF “is an organization devoted to improving the administration of justice, promoting an understanding of the law, and ensuring equal access to the legal system for all residents of Massachusetts, particularly the most vulnerable,” that it does not take advocacy positions, and that it is not frequently involved in litigation before the courts of the Commonwealth. The Committee then responded to eight questions regarding the scope of judicial participation in the MBF’s activities and concluded:

• Judges were permitted to participate in grant-making activities because the Code permitted judges to “make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice” and “[t]he programs served by the MBF ha[d] the direct nexus to the work of the courts that [the Committee] ha[d] previously required in [its] interpretation of the phrase ‘the law, the legal system, or the administration of justice.’” (2003 Code, Section 4 C (3)(b)(ii)).
• Even though the Code prohibited judicial participation in membership solicitation if such solicitation was “essentially a fund-raising mechanism,” judges were permitted to participate in “membership development of, and nominat[e] and vot[e] on, new Fellows, who thereby w[ould] receive recognition as leaders in the legal community and be invited to pledge money to the organization” because “selection as a Fellow [was] a significant recognition of achievement in the Massachusetts legal profession.” The Committee cautioned, however, that, “a judge would be precluded from personal involvement in the solicitation of funds from the Fellows who are attorneys.” The Committee further determined that, because Lead Fellows, those who pledged to give more than the minimum, received no greater public recognition for their leadership in the Massachusetts bar than did Fellows, the elevation of a Fellow to one of the higher categories of membership was “essentially a fund-raising mechanism.” Judges were therefore generally prohibited from participating in membership development or solicitation of Lead Fellows. That said, a judge could “solicit judges over whom they [did] not have supervisory or appellate authority to become Fellows and to move to Lead Fellow status.” (2003 Code, Section 4 C (3) (b) (i) and (iii)).
• Judges could participate “in the general oversight of the organization, including budgeting, hiring, and oversight of personnel. While such discussions indirectly impact[ed] fundraising initiatives and responsibilities, membership development, and investment management, participation [was] still allowed up to the point at which the judge [was] directly involved in ‘the management and investment of the organization's funds, . . . planning fund-raising,’ and personal participation ‘in the solicitation of funds or other fund-raising activities.’” Judges could also “participate in general discussions about the direction of the institution, even though such discussions may implicate fundraising. A judge should recuse himself or herself from discussions on the development and implementation of fundraising plans.” (2003 Code, Section 4 C (3) (b) (i)).
• Judges could appear or be profiled in the MBF newsletter so long as the newsletter’s purpose was “primarily an informational vehicle to inform recipients of how members of the bar and the judiciary fulfill[ed] the mission of the MBF…. A judge profiled in the MBF newsletter must, however, take appropriate steps not to convey the impression that other Fellows [were] in a special position to influence him or her.” 2003 Code, Canon 2 B and Cannon 4.
• Judges could be included on lists of Fellows, because designation as a Fellow included nonfinancial recognition, but could not be included on lists of Lead Fellows (those who pledged larger amounts) because “identifying judges as Lead Fellows [ran] the risk that lawyers would feel pressure to join the ranks of Lead Fellows to raise their status in the eyes of the judges who already [held] that status.”
• “[W]hile judges' names may be included on the general purpose MBF letterhead, they [could] not be included on letterhead used exclusively for fundraising purposes.”

III. 2003 Code of Judicial Conduct vs. 2016 Code of Judicial Conduct

Prior to discussing application of the current (2016) Code, it is worth highlighting some of the major relevant changes from the 2003 Code. Notably, the 2016 Code places new emphasis on the importance and benefits of judges’ outreach activities and community involvement. Consistent with this, certain extrajudicial activities that were prohibited under the 2003 Code or Committee opinions interpreting that Code are now permitted. Under the current Code, subject to the limitations of Rule 3.1, judges may now: participate in internal discussions regarding fundraising (Rule 3.7(A)(3)); speak or be recognized at fundraising events for organizations that are both concerned with the law, the legal system, or the administration of justice and that promote the general interests of the judicial brand or the legal profession (Rule 3.7(A)(6A)); and be identified by name and title on nonprofit organizations’ letterhead or other materials used to solicit donations and members so long as comparable designations are used for others who are identified (Rule 3.7, Comment [2]). The new Code also now treats solicitation of contributions and of members for nonprofit organizations in the same manner, limiting both to members of the judge’s family or judges over whom the judge does not exercise supervisory or appellate authority (Rule 3.7(A)(4)). See Final Report of the Committee to Study the Massachusetts Code of Judicial Conduct on the 2016 Massachusetts Code of Judicial Conduct, Summary of Key New and Revised Provisions (“2016 Code Committee Report”) at p. 32. 

IV. The Current Code of Judicial Conduct

An obligation to act at all times in a manner that promotes confidence in the independence, integrity, and impartiality of the judiciary requires judges to avoid not only impropriety, but also the appearance of impropriety in both their professional and personal lives. See Rule 1.2; see also Code, Preamble [2]. Against this backdrop and subject to conducting an individualized analysis of the considerations outlined in Rule 3.1 and Rule 3.7, Comment [1A], the Code permits judges to participate in certain activities of nonprofit legal, educational, religious, charitable, fraternal, or civic organizations. See Rule 3.7(A). Permitted participation includes being a member of the organization, planning and attending organization events, and, unless it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be frequently engaged in adversary proceedings in the judge’s court or any court subject to the appellate jurisdiction of the court of which a judge is a member, serving as an officer or board member. See Rule 3.7(A)(5). See also Opinion No. 2016-02 (addressing service on the board of nonprofit school); Opinion No. 2017-03 (addressing service on the governing board of a bar association). The Code also permits judges to “make recommendations to public or private fund-granting organizations or agencies for programs and projects, but only on behalf of organizations that are concerned with the law, the legal system, or the administration of justice.” Rule 3.7(A)(7).

However, participation in extrajudicial activities is not unfettered. Rule 3.1 prohibits judges from participating in activities that are “reasonably likely to interfere with the proper performance of the judge's judicial duties,” activities that are “reasonably likely to lead to recurrent disqualification of the judge,” and those “that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality.” Rule 3.1(A)-(C). Judges may not “engage in conduct that would appear to a reasonable person to be coercive.” Rule 3.1(D). “In considering whether participation in any extrajudicial activity would violate Rule 3.1, a judge should consider all relevant factors, including the membership and purposes of the organization, the nature of the judge’s participation in or association with the organization or event, whether the organization or its members typically advocate on one side of issues before or likely to come before the court of which the judge is a member or any court subject to the appellate jurisdiction of the court of which the judge is a member, and the number, diversity, and identity of the financial supporters of the organization or sponsors of a particular event.” Rule 3.7, Comment [1A]; cf. Opinion No. 2017-03 (cautioning against “participation in discussion and decisions concerning any policy areas where the judge’s involvement could adversely affect the impartiality and integrity of the judiciary”).

Additionally, while judges may now participate in internal discussions regarding fundraising, they may not “otherwise participate in fundraising, and shall not manage or invest funds belonging to or raised by the organization unless the organization is composed entirely or predominantly of judges and exists to further the educational or professional interests of judges.” Rule 3.7(A)(3). Judges also may not “solicit contributions or members for the organization, except that a judge may solicit contributions or members from members of the judge’s family or from judges over whom the judge does not exercise supervisory or appellate authority.” Rule 3.7(A)(4). That said, if the organization is both “concerned with the law, the legal system, or the administration of justice,” and one that “promotes the general interests of the judicial branch of government or the legal profession,” the Code permits judges to “serve as a keynote or featured speaker at, receive an award or other comparable recognition at, be featured on the program of, and permit the judge’s title to be used in connection with the promotion of a fundraising event.” Rule 3.7(A)(6A). 

V. Analysis

To begin, as explained below, we advise that Opinion No. 2004-8 is still valid in some, but not all, respects under the current Code. The MBF is a nonprofit legal organization of the type encompassed by Rule 3.7(A). Therefore, subject to conducting an individualized analysis of the considerations outlined in Rule 3.1 and Rule 3.7, Comment [1A], a judge may participate in many of the MBF’s activities. Such participation includes serving as an MBF Judicial Trustee unless it is likely the MBF will be engaged in proceedings that would ordinarily come before the judge or will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member. Rule 3.7(A)(5).

To provide further guidance regarding the permitted scope of a Judicial Trustee’s activities, we consider the eight questions posed by the requestor of Opinion No. 2004-8, reframed in the context of our understanding of the MBF’s current operations, as described above.   

1. May judges participate in IOLTA and non-IOLTA grant-making activities?

Yes. Rule 3.7(A)(7) permits judges to “make recommendations to public or private fund-granting organizations or agencies for programs and projects, but only on behalf of organizations that are concerned with the law, the legal system, or the administration of justice.”^[3] The MBF’s stated mission is to increase access to civil legal aid, improve the administration of justice, and promote an understanding of the law. It gives effect to this mission by awarding grants to, among others, bar associations, legal advocacy groups, legal services providers, and law students interning at legal aid organizations and in the courts. Both the MBF and its grantees are organizations that are concerned with the law, the legal system, or the administration of justice within the meaning of Rule 3.7. We therefore join our predecessor Committee in concluding that, reasonably understood, Rule 3.7(A)(7) encompasses judicial participation in the grant-making process as an MBF Judicial Trustee.

2. May judges participate in discussions or votes regarding membership development? May judges nominate and vote on new Fellows? May judges participate in efforts to encourage Foundation Fellows to become Leadership Fellows (including attending meetings sponsored by the MBF during which Foundation Fellows may be asked to become Leadership Fellows or otherwise financially support the MBF)?

Yes and No. With the adoption of the 2016 Code, the Committee eliminated the distinction found in the prior version of the Code and relied upon by the authors of Opinion No. 2004-8 between membership solicitations that are “essentially a fund-raising mechanism” and those that are not, reasoning that “most membership solicitations have at least an indirect fundraising goal.” 2016 Code Committee Report at p. 32. The new streamlined Code instead simply prohibits judges from soliciting contributions or members for an organization, except from members of the judge’s family or from judges over whom the judge does not exercise supervisory or appellate authority. Rule 3.7(A)(4). This Code also newly permits judges to participate in internal discussions related to fundraising. Rule 3.7(A)(3).

Against this backdrop, the Committee observes that there appear to have been some changes to the way individuals become Fellows of the MBF since the 2004 opinion was issued. Based on the information currently available, it no longer appears that becoming a Fellow of the MBF requires evaluation by the Trustees of an individual’s professional leadership experience or professional commitment to the MBF’s mission. Though the MBF’s Bylaws suggest that Fellows are those members of the MBA nominated by the Trustees, the MBF’s website provides several other avenues for Fellowship. Now, it appears, anyone can nominate a Fellow or become a Fellow without satisfying “significant nonfinancial criteria,” as was the case in 2004.^[4] In short, it is no longer apparent to the Committee that the MBF Fellows program serves the dual function of raising funds for the organization and honoring “achievement in the Massachusetts legal profession” that was central to the 2004 Committee’s reasoning.  Instead, the Fellows program now appears to be primarily a fundraising mechanism.

Turning to the specific membership-related questions, the Committee now advises:

• Judicial Trustees may participate in internal discussions regarding strategies to encourage members of the bar to join the MBF. Such conversations would be consistent with new Code provisions permitting judges to participate in internal discussions related to fundraising and provisions permitting judges to serve on the MBF Board. See Rule 3.7(A)(3) & (A)(5). Additionally, the limitation on judges’ involvement with solicitation of members for an organization appears to stem from a concern that “the person solicited would feel obligated to respond favorably or would do so to curry favor with the judge.” Rule 3.7. Comment [3].  But concerns about the coercive effect of a judge’s solicitation efforts could be avoided if Judicial Trustees only participate in internal discussions regarding membership development and do not themselves participate in direct outreach.
• Judicial Trustees may also participate in internal discussions of and Board votes on policies that apply to all Fellows, such as annual or total contribution amounts or limitations on the number of Fellows.   
• Judicial Trustees may not nominate new Fellows or encourage individuals to become Fellows of the MBF at any level, except that they may do so if the individual is a member of the Judicial Trustee’s family or another judge over whom the Judicial Trustee does not exercise supervisory or appellate authority. Rule 3.7(A)(4). Unlike the 2004 Committee, we do not draw a distinction between judges’ involvement with the recruitment of Foundation Fellows versus Leadership Fellows (formerly referred to as Fellows and Lead Fellows, respectively).

3. May judges participate in the general oversight of the organization including budgeting, hiring, and oversight of personnel, when doing so indirectly may involve discussion and consideration of fundraising initiatives and responsibilities, membership development, and investment management?

Yes, subject to certain limitations. We agree with the drafters of Opinion No. 2004-8 that the Code does not prohibit Judicial Trustees from participating in the general oversight of the MBF, including by participating in Board-level discussions about budgeting, hiring, oversight of personnel, membership development (i.e., strategies to encourage membership), and general investment goals. We believe that such activities are generally understood to be the types of activities that are within the scope of service as an officer, director, trustee, or nonlegal advisor to an organization, where such service is permitted under Rule 3.7(A)(5). See also Opinion No. 2017-03.  However, because Judicial Trustees are not permitted to manage or invest funds belonging to or raised by the MBF, Rule 3.7(A)(3), they should exercise caution when such topics are discussed to ensure that they do not become directly involved with these prohibited activities.

With respect to discussion or consideration of fundraising, we again note that the new Code permits judges to “participate in internal discussions related to fundraising.” Rule 3.7(A)(3). See also Opinion No 2016-02. Therefore, it is no longer the case that Judicial Trustees must recuse themselves from discussions about the development and implementation of fundraising plans, as was required in 2004.

We take this opportunity to note a few additional limitations on service as a Judicial Trustee:

• Judicial Trustees may not participate in “discussion and decisions concerning any policy areas where the judge's involvement could adversely affect the impartiality and integrity of the judiciary.” Opinion No. 2017-03. Examples of prohibited activities include participating in a decision to file an amicus curiae brief as well as discussions and decisions regarding the MBF’s active support of or opposition to legislation.
• Judicial Trustees should not recruit Fellows or other non-Judicial Trustees to assume leadership positions or other roles, as an attorney may perceive such recruitment efforts to be coercive, particularly if the attorney could appear before the judge. Opinion No. 2017-03.     
• Judicial Trustees should avoid “any involvement that would violate the prohibition on a judge's engaging in the practice of law.  This would include, for example, the review of contracts with vendors, negotiating with vendors, and dealing with personnel matters.” Opinion No. 2017-03. See also Rule 3.10.

4. May judges voluntarily appear or be profiled in the MBF newsletter?

Maybe, depending on the purpose of the MBF newsletter. Rule 1.3 prohibits a judge from “abus[ing] the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow[ing] others to do so.” In interpreting the application of Rule 1.3 when an organization would like to feature a judge in public-facing materials, the Committee has drawn a distinction between including a judge in materials that are intended for informational purposes and those that are intended for promotional purposes or to suggest judicial endorsement. See Opinion No. 2017-02; Opinion No. 2000-6 (issued under prior version of the Code, but cited with approval in an opinion issued under the current Code); Frequently Asked Questions at p. 4 (judge may not participate in promotional billboard campaign for school but may be featured in alumni bulletin intended to provide information about alumni with that community).

Consistent with this interpretation of Rule 1.3 and with Opinion No. 2004-8, the Committee advises that judges may appear or be featured in the MBF newsletter so long as the newsletter “is primarily an informational vehicle to inform recipients of how members of the bar and the judiciary fulfill the mission the MBF.” Opinion No. 2004-8. Judges may not, however, be featured in a manner that crosses the line from informational into prohibited promotion or judicial endorsement of the MBF. Judges also may not be featured in a manner that could “convey the impression that any person or organization is in a position to influence the judge.” Rule 2.4(C).

5. May judges be included on lists of Fellows made publicly available by the MBF in its literature and on its website?

Yes. Reversing a prohibition in the 2003 Code, Rule 3.7(A)(6A) permits use of a judge’s name and title to be used in connection with the promotion of a fundraising event that 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.” The MBF is such an organization. We have already concluded that the MBF is concerned with the law, the legal system, or the administration of justice, as that phrase is understood in the context of Rule 3.7. It is also an organization that promotes the general interests of the judicial branch and the legal profession, including by using funds to improve the administration of justice and to assist in the delivery of civil legal services to those who cannot afford them.

Because a judge’s name and title can generally be used to promote the MBF’s fundraising activities, it is no great leap to conclude that judges’ names and titles may also be included on public lists of MBF Fellows, even though we have concluded that the Fellows program appears to be primarily a fundraising mechanism. And because becoming a Fellow at any level no longer appears be a mark of the MBF’s recognition of achievement in the legal profession, we no longer draw a distinction between Foundation Fellows (formerly Fellows) and Leadership Fellows (formerly Lead Fellows) when it comes to whether a judge may be included on public lists of Fellows.

We also conclude that a judge Fellow’s pledge level may be indicated on such public lists so long as that information is also included for non-judge Fellows. Publishing information about judges’ pledge amounts in these circumstances is unlikely to create an actual or perceived dynamic of “pay to play,” where attorneys feel pressure to pledge equal or greater amounts to curry favor with or gain access to judges, as could be the case if the MBF was primarily controlled by or composed of judges.

Of course, ever obligated to prevent abuse of the prestige of judicial office (Rule 1.3), avoid conduct that would appear to a reasonable person to be coercive (Rule 3.1(D)), and generally avoid soliciting members for an organizations (Rule 3.7(A)(4)), judges should nonetheless be on alert if selective emphasis is placed upon their status as an MBF Fellow or their pledge level.

6. May judges' names appear on MBF letterhead for any purpose?

Yes, subject to certain limitations. While we cannot anticipate every purpose for which MBF letterhead may be used, we agree with the drafters of Opinion No. 2004-8 that judges’ names may be included on general purpose MBF letterhead. Departing from the prior Code, the current Code also permits judges to be “identified by name and title as an organization’s officer, director, trustee, non-legal advisor, or member on websites, emails, letterhead, and any other communication materials created and issued by others within the organization to solicit or accept donations or to enroll members so long as comparable designations are used for other persons.” Rule 3.7, Comment [2]. While, in theory, it might be preferrable for judges not to be so identified, the Committee that studied and recommended the current Code concluded that “requiring judges to monitor the communications of organizations and direct the content of their letterhead or websites would be burdensome and potentially unenforceable, and would interfere with the ability of judges to participate in leadership roles in organizations.” 2016 Code Committee Report at p. 33.

However, Rule 1.3’s prohibition on the abuse of the prestige of judicial office requires judges to exercise caution if selective emphasis is placed on judges’ names and titles on MBF letterhead. For example, if the MBF letterhead used for a particular purpose features only the names and titles of Judicial Trustees and no other Trustees, the named Judicial Trustees should consider whether that use constitutes a proper purpose or if it is instead an attempt to capitalize upon the prestige of judicial office for the MBF’s benefit. Cf. Opinion No. 2017-02.   

VI. Conclusion

The answers provided here are intended to illuminate general application of the Code. Each judge must consider whether application of this necessarily general advice in the judge’s individual circumstances is consistent with the Code, including with the limitations established by Rule 3.1 and any disqualification obligations that may arise under Rule 2.11. 

[1] The advice that follows is based on the Committee’s understanding of the facts and circumstances of your inquiry, as set forth here. This background information has been compiled based on information publicly available on the MBF’s website, information you have provided, and other sources, as cited. 

[2] Per SJC Rule, IOLTA funds must be distributed to programs that either provide civil legal services to low-income clients or improve the administration of justice. See Rules of Professional Conduct, Rule 1.15(g)(5).

[3] The Chief Justice Ralph D. Gants Judicial Scholarship Program is funded by the Massachusetts Department of Higher Education. See Chief Justice Ralph D. Gants Judicial Scholarship Program Webpage (“Gants Judicial Scholarship Webpage”), https://www.massbarfoundation.org/gants-scholarship.

[4] Though there is a slight change in the language between the 2003 Code’s Section 4C(3)(b)(ii) (a judge may “make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice . . .”) and the 2016 Code’s Rule 3.7(A)(7) (“A judge may make recommendations to public or private fund-granting organizations or agencies for programs and projects, but only on behalf of organizations that are concerned with the law, the legal system, or the administration of justice.”), the Committee that drafted the new Code made it clear that these two provisions are “consistent.” See 2016 Code Committee Report at p. 33.

[5] If this interpretation is incorrect or if the Board returns to the practice of evaluating and voting on would-be Fellows based on established criteria other than willingness to make the required financial pledge, standing with the Board of Bar Overseers, or the total number of Fellows, we invite the MBF to seek guidance from the Committee regarding the propriety of judicial involvement in the selection process. See SJC Rule 3:11(3) (authorizing an organization or association composed of judges or lawyers to seek an informal opinion from the Committee regarding contemplated conduct).