Related to:
Opinion

Opinion CJE Opinion No. 89-1

Date: 03/04/1989
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Donations For Decorating Court

You have written to us regarding your consideration of a proposed program to adorn the walls in the public area of your District Court with replicas of flags of the United States used early in our country's history.  The program envisions that the flags would be donated to the Court by individual attorneys, law firms, and area businesses. A plaque would be placed on the wall beside each flag describing its historic significance and naming the donor. The program would be administered by a commercial firm located in Texas, which would undertake the solicitation of donations from the attorneys, law firms, and area businesses.

You ask the committee to consider the possible conflict of interest which might result from an attorney or a company that may do business with the Court making a donation to this program.

Several canons in the Code of Judicial Conduct (Supreme Judicial Court Rule 3:09) appear to be relevant to the proposal. Canon 2(B) states that a "judge should not . . . convey or permit others to convey the impression that they are in a special position to influence him." Canon 4 states that a judge may engage in activities to improve the administration of justice "if in doing so [the judge] does not cast doubt on his capacity to decide impartially any issue that may come before him." It is the belief of this committee that the presence of the plaques described in the public hall of the Court may create a public impression that certain attorneys, firms, or area businesses stand in the favor of the Court. In cases in which a donor is a party or an attorney, the Court's appearance of neutrality and impartiality will be compromised regardless of the actual feelings of the judge. (1)

The committee is equally concerned by the nature of the fund-raising for this project. Canon 5(B)(2) states that "[a] judge should not solicit funds for any educational, . . . charitable, . . . or civic organization, or use or permit the use of the prestige of the office for that purpose . . . ." Pursuant to Canon 5(B)(2) it would follow that a judge should avoid giving ground for any reasonable suspicion that the judge is utilizing the power and the prestige of the office to persuade others to contribute to a charitable or civic enterprise. While an effort has been made to separate the Court from the solicitation of funds, we believe that such a separation cannot in fact effectively occur. The fact that the Court will be the direct beneficiary of the project, combined with the knowledge that no such project could proceed without the support of the Court, will necessarily tie the power and prestige of the office to the fund-raising enterprise. We believe that a tie such as this would render the contemplated solicitation unacceptable.

For the above reasons, it is the opinion of the committee that the program as proposed would violate the guidelines established by the Code of Judicial Conduct.

(1) Such an appearance of partiality could possibly be ameliorated if the contemplated donor were a broadly based civic, charitable, or even professional organization which was unlikely to appear as a party before your Court.

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