Opinion CJE Opinion No. 99-14

Date: 11/09/1999
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.

Contact for CJE Opinion No. 99-14

Committee on Judicial Ethics

Table of Contents

Serving as Part-Time Technical Consultant to Television Program

By letter dated October 10, 1999, you requested from the Committee on Judicial Ethics ("the Committee") an opinion on whether you could act as a "part-time technical consultant" for a new legal television program focused on a fictional juvenile and family court judge. As the Committee understands it from your letter, the program would be produced by a major company and would be broadcast weekly on a major television network. Your work would entail about two evening hours each week from July to February. Substantively, you would provide "creative and legal consultation" to the program's producers in connection with draft scripts dramatizing fictional courtroom events. Insofar as the program's producers are concerned, you would be considered to be an "independent contractor." You would not provide any "legal advice" to the producer or to the network. Finally, you have informed us that your compensation for your endeavors will not exceed "what a person who is not a judge would receive for the same activity."

At the outset, it is important to state that the Committee understands your reference to providing "legal consultation" to be a reference to providing advice regarding the accuracy of legal terms, concepts, outcomes and the like used in the various scripts on which you will be consulting and not to consultation regarding the non-fictional legal consequences of following any particular course of action in connection with the program's production. Moreover, because you have not disclosed anything about the amount of income you will receive from the project or the amount customarily paid to others for similar services, we are in no position to render an opinion regarding whether, in fact, your compensation is consistent with the mandate of Canon 6 that the compensation a judge receives should not exceed "what a person who is not a judge would receive for the same activity." We leave it to you, therefore, to make that judgment.

Those preliminaries concluded, the Committee believes that your participation in the program's production is not prohibited by the Code of Judicial Conduct. As your letter itself points out, the two Canons primarily relevant to your participation are Canon 4 and Canon 5. In essence, Canon 4 contains a list of activities in which a judge may engage if his or her participation in those activities "does not cast doubt on his [or her] capacity to decide impartially any issue that may come before him" or her. Canon 4, however, is not an exclusive list of activities in which a judge may engage with impunity. Instead, Canon 4 is designed to provide a clear and unequivocal statement regarding the propriety of engaging in certain activities historically likely to attract judicial participation. The Committee declines to decide whether your proposed participation in the program fits within the area Canon 4 stakes out because the question is a close one and even a negative answer to it would not prohibit you from doing what you would like to do. See S.J.C. Rule 3:11 (2).

That leaves Canon 5. Two portions of that Canon, one permissive and the other prohibitory, apply to your request. The first is Canon 5 (A) which says that:

"[a] judge may write, lecture, teach, and speak on nonlegal subjects, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of [the judge's] office or interfere with the performance of [the judge's] judicial duties."

The Committee believes that the program production role you have described in your letter would not detract from the dignity of your office. In addition, the Committee believes that spending two hours per week in the evenings during part of the year, in and of itself, is unlikely to interfere with performance of your judicial duties. In the last analysis, of course, you will have to judge as your participation proceeds whether interference in fact is occurring.

Finally, Canon 5 (C), entitled "financial activities," provides in pertinent part that:

"(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.

"(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity permitted by Canon 4, but should not serve as an officer, director, manager, advisor, or employee of any business."

You have stated in your letter that you will be an independent contractor. That conclusion, supported by your description of the nature of your activities, indicates that the prohibition on service as an "employee" is not an impediment to the activity in which you wish to engage. With that assumption in mind, the relevant portion of Canon 5 is Canon 5 (C) (2)'s prohibition of judicial service as an "advisor . . . of any business."

On the face of it, providing advice - which you surely propose to do - to a business - which the producer surely is - could be viewed as running afoul of the quoted prohibition Canon 5 (C) (2) contains. When the term "advisor" is viewed in context, however, the Committee is of the opinion that the Canon's focus is on provision of financial, strategic, marketing or other like advice typically encountered in a business context. The prohibition does not apply to providing advice about the fidelity of a fictional script to real-life experience or about such a script's dramatic impact.

One final thought is somewhat collateral to your express request and has to do with the provisions of Canon 2 (B) which prohibit a judge from "lend[ing] the prestige of [judicial] office to advance the private interests of others." You have not described whether and to what extent you will receive on-screen credit for your role in the program's production. Likewise, you have not told the Committee whether any advertising for the program will refer to you as a judge or as a judge of a particular court. Finally, you have not told the Committee anything about whether you will be making appearances on radio, television or other programs designed to discuss the program's content. Accordingly, the Committee has no basis upon which to render an opinion regarding the permissible boundaries of promotional activities or of the public recognition awarded to you for your participation in the program's creation. Instead, the Committee simply invites your attention to the provisions of Canon 2 (B) just quoted and recommends that you take the care you undoubtedly will to insure that you do not lend, intentionally or otherwise, the prestige of the office you hold to enhancement of the program's stature.

In sum, the Committee is of the opinion that, subject to the assumptions and caveats set out above, you may act as a "part-time technical consultant" for a new legal television program focused on a fictional juvenile and family court judge under the circumstances your October 10 letter describes.

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