Opinion  CJE Opinion No. 91-3

Date:	12/30/1991
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.

Appointment to Advisory Committee to Hospital

You have requested the advice of this Committee on whether you may serve on the Community Advisory Committee of a non-profit hospital. This Committee is "a group of individuals from various communities within the Hospital's primary service area whose role is to assist and advise the Hospital and its Board of Trustees ...[on] issues...of strategic, ethical and philosophical interest to the Hospital, and to represent the Hospital as ambassadors of goodwill in the community." *

The Committee will "meet a minimum of once per year, and... on an ad-hoc basis throughout the year as needed." Also, as a member of the Committee, you "may assist existing or ad-hoc committees of the hospital as needed." You foresee that the Hospital might come before your court on a petition for appointment of a guardian or in a proceeding under General Laws Chapter 201D, the Health Care Proxy statute.

Canon 5(B) of the Code of Judicial Conduct (Supreme Judicial Court Rule 3:09) provides that "[a] judge may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members" unless "it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court." See Canon 5(B)(1). The Hospital is an organization as described above. As to the first prong of the proviso ("proceedings that would ordinarily come before [you]"), you state that the Hospital might possibly be a party in a proceeding before your court, but you do not indicate the likelihood or frequency of any such appearances. If such appearances in your court are very infrequent, you may serve and simply recuse yourself were the matter to be assigned to you. However, if such appearances were more than sporadic, recusal would not suffice and your membership on the Committee would be prohibited. Thus, it will be necessary that you regularly review the activities of the Hospital in your court to determine if you may properly continue to serve on the Committee.

The second prong of the proviso (that the organization "not regularly engage in adversary proceedings in any court") would appear not to pose a problem. To implicate this provision, "[t]he organization must appear in adversary proceedings in any of the courts of the Commonwealth as a substantial part of its overall activities." CJE Advisory Opinion 89-2.

If you do serve on the Committee, you will be subject to the following limitations:

1. you should not solicit funds for the Hospital, nor "use or permit the use of the prestige of [your] office for that purpose...[nor] be a speaker or the guest of honor at...[the Hospital's] fund raising events," although you may attend such events, Canon 5(B)(2).;
2. while you may be listed by the Hospital as a member of the Committee, you should not permit your name to be included on stationery used in fund raising, nor in any way permit a "selective emphasis" of your name and office (Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges, p. 31; see also Canon 2(B));
3. you "should not give investment advice" to the Hospital, Canon 5(B)(3); and
4. you should not permit your service on the Committee to be overly time-consuming so as to "interfere with the performance of [your] judicial duties," Canon 5(A).  

*With regard to any such representation, you should review the provisions of G.L. c. 268A, §4, which prohibits a state employee such as yourself from representing the Hospital on a "particular matter" in which the state is a party or "has a direct or substantial interest."