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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.
You have requested the advice of this Committee as to whether you may continue to contribute to the Massachusetts Bar Foundation. Prior to becoming a judge, you participated in the Foundation's pledge program which anticipates an annual contribution toward a specific monetary goal.
According to its 1995 Annual Report, which you furnished us, "[t]he purpose of the Massachusetts Bar Foundation is to further the administration of justice, provide legal services for the poor, support legal and judicial education and uphold the values of ... [the legal] profession." To that end, in 1995 the Trustees of the Foundation awarded $1.2 million to 70 programs in the Commonwealth. "Grantees include[d] legal services programs, county bar associations, alternative dispute resolution programs, special projects established to serve the homeless, advocacy programs for victims of domestic violence and a variety of court initiated projects." Approximately two-thirds of the total funds awarded "went to support programs which provide civil legal services to low income persons," with the balance going to programs intended to improve the administration of justice. It should be noted, moreover, that the largest single grant in 1995, amounting to well over ten percent of the total awarded, was given to the Flaschner Judicial Institute which provides judicial education and training to Massachusetts judges. The principal source for these various grant awards is income from IOLTA (Interest on Lawyers' Trust Accounts), a program which was established by the Supreme Judicial Court in 1985 and in which all practicing attorneys are required to participate.
While the Canons of Judicial Conduct speak to a judge's activities relating to organizations "devoted to the improvement of the law, the legal system, or the administration of justice" (Canon 4), and to "educational, religious, charitable, fraternal, or civic" organizations (Canon 5(B)) and specifically proscribe certain fund raising activities on behalf of such organizations, the Canons do not expressly address the propriety of contributing money to them. Canon 2(A) does provide, however, that a judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." This more general prohibition may be implicated whenever a judge becomes too closely identified with an organization which regularly represents clients in the courts of the Commonwealth or which espouses a cause that might be seen as impacted by litigation. See, for example, CJE Opinion No. 91-2 where we advised a probate judge that she may not serve on an advisory committee being established by the Coalition for Battered Women Service Groups. See also CJE Opinion No. 95-8 in which we concluded that the Canons did not permit a judge to contribute money to the Gay and Lesbian Advocates and Defenders (GLAD) because of its involvement in litigation concerning gay and lesbian civil rights. (It should be noted that GLAD received a grant from the Foundation in 1995.)
These same concerns, however, would not bar you from continuing to contribute to the Massachusetts Bar Foundation for the following reasons. First, not all recipients of Foundation awards fall under the category of advocacy groups. A significant minority of the grantees has nothing to do with litigation in the courts of the Commonwealth or is not aligned with a particular cause. Since there would be nothing wrong with a judge contributing directly to these organizations, indirect contributions would pose no problem. Second, that a judge's contribution is funnelled through an intermediary greatly reduces the likelihood of any public perception that the judge is supporting a particular organization or cause.