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Opinion

Opinion CJE Opinion No. 98-1

Date: 03/03/1998
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.

Inclusion in Law School Booklet re Alumni Judges

You are an alumnus of a law school, which is a non-profit corporation qualifying for tax exempt status under Section 501(C)(3) of the Internal Revenue Code. The law school has produced a booklet about its alumni judges which includes photographs and biographical sketches. The booklet will be used to attract interest in the law school from potential students. It will not, however, be used for fund-raising purposes. You ask whether the Code of Judicial Conduct obligates you to object to your inclusion in the booklet or to take any other action.

The Committee was presented with a somewhat analogous situation in CJE Opinion No. 90-1 where a judge's former law firm was preparing a brochure about the firm's history, the types of legal work it did and the categories of clients it serviced. This brochure would contain biographical information not only about its current partners and associates, but also about former partners, like the judge seeking the opinion, who had gone on to achieve prominence in public life. Since the brochure would be distributed to prospective as well as current clients, it took on a distinct advertising purpose. We concluded that Canon 2(B) obligated the judge to notify the members of his former firm that he objected to the use of his name and office in the proposed brochure.

We do not believe, however, that Canon 2(B) requires a similar result in your case. That Canon provides, in relevant part, that a judge

"should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him."

Arguably, if you allowed the school to include you in the booklet, you would be lending the prestige of your office to advance your alma mater's private interests. However, Canon 2(B) must be read in the context of Canons 4 and 5. Canon 4 allows a judge to teach and participate in other activities concerning the law at any law school. That a law school numbers judges among its faculty would probably be a greater aid in the recruitment process than the proposed booklet. Also, Canon 5(B) allows a judge, in most instances, to be a member of the board of trustees of his or her alma mater or an officer, director or trustee of its alumni association provided the judge does not directly engage in any fund-raising activities. Here again, such service may well impact the school's public image and admissions process to a greater degree than the proposed booklet.

More importantly, in No. 90-1 we were particularly concerned that the brochure contemplated there "might contain the message that the firm is influential because of its special (albeit former) association with a high ranking member of the Commonwealth's judiciary." The brochure may have thus, even unwittingly, conveyed the impression that the firm might enjoy some advantage in proceedings before the Massachusetts courts. Clients might have been attracted to the firm because of such a perception - however unwarranted. In your situation, the law school would not be capitalizing on your official position in such an inappropriate way, but would only enjoy the benefit any educational institution reaps from the success of its graduates - a benefit which, in our view, is not significant enough to implicate the Canons. In this regard, we note that our counterpart in New York appears to have reached a similar conclusion (NY Advisory Opinion 88-79), although the one in Florida did not (FL Advisory Opinion 80-40). (1)

1. One member of the Committee did not participate in the consideration of this request.

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