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Opinion

Opinion CJE Opinion No. 98-5

Date: 03/19/1998
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.

Bar Association Involvement in Court Celebration

You have asked this Committee's advice with respect to potential bar association involvement in the celebration of a landmark anniversary of your court. You asked about the propriety of the following:

         a) a bar association making a financial contribution to the event;

         b) one or more members of a bar association being asked to write an updated history of the court;

         c) one or more members of a bar association being asked to speak at the ceremony; and

         d) one or more members of a bar association being asked to participate on the planning committee.

As you recognize, our Opinion 89-1 is relevant to the issues you raise. There we considered a court's proposed program to have lawyers and area businesses donate early American flags to a particular District Court, with their participation noted on a plaque in the courthouse. We advised that the program violated several different Canons. The plaques would create an impression that the lawyers or businesses so honored had earned the court's favor, thus violating Canon 2 (B). Moreover, the court's appearance of neutrality toward particular lawyers would be compromised, in violation of Canon 4. In addition, we advised that the fund-raising aspects of the program violated Canon 5 (B) (2), which states that "A judge should not solicit funds for any . . . civic organization, or use or permit the use of the prestige of his office for that purpose . . . ." We thought the program involved the court in using the power of its office to persuade others to contribute to a civic organization and noted the special danger when the court itself was the beneficiary of the solicitation.

With that background, we turn to the specific questions you ask. We believe that seeking a financial contribution from a bar association falls within the direct prohibition of our conclusion in Opinion 89-1. While it is true that the donors would be the more amorphous bar associations and not particular lawyers, the prohibition of Canon 5 (B) (2) does not depend solely on avoiding the appearance of favoritism that donations might imply. The prohibition also seeks to avoid the actual or perceived use of the power of the court to induce contributions, and it is phrased broadly to avoid any possibility of misuse or misunderstanding. We therefore conclude that contributions should not be sought from bar associations to the court's celebration of its anniversary.

We next consider the propriety of asking certain members of bar associations to perform the activities listed in paragraphs b), c), and d) of your letter. While the inquiry speaks of members of bar associations, we believe that our advice is applicable to a request to any lawyer. Having interpreted the fund-raising prohibition of Canon 5 (B) (2) broadly and literally, we do not believe that it is necessary or wise to read the prohibitions of Canons 2 (B) and 4 regarding favoritism so broadly as to prohibit desirable professional interactions between courts and members of the bar. Judges single out particular lawyers to perform a wide variety of tasks, including service on committees appointed by courts, that aid in the administration of justice and the education of the public. The encouragement of such activities in Canons 4 and 5 makes it apparent that Canon 2 (B) and 4 do not prohibit lawyers and judges from working together to further those purposes. We therefore conclude that none of the activities mentioned in paragraphs b), c), and d) violate any provisions of the Code of Judicial Conduct. (But see Opinion 97-7 with respect to concerns we have raised when judges make such requests of lawyers who may practice before them when the judges are not making such requests in their judicial role but as leaders of a "legal" organization.)

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