2009-25 (August 19, 2009)
Service on Board; Prestige of Office; Canons 2, 4 & 5

Issue: May a Judicial Official serve on the advisory board of an organization, operated by a for-profit business, designed to serve as a referral and information sharing organization for “prominent and experienced” attorneys in private practice where membership in the organization is limited to attorneys who meet certain specified criteria and where the goal of the organization is to assist the members to obtain and retain good clients and profitable business.

Response: The parent business that operates the organization is a for profit entity that provides consulting for the legal profession in the areas of business and growth solutions. The organization is not only a referral and information sharing network but also offers “webinars” for a fee regarding business development and practices. The advisory board assists with programming, advises regarding whether attorneys should be granted membership in the organization and advises regarding the organization’s expansion into other countries. Membership in the organization currently is limited to attorneys in private practice but, if the Judicial Official joins the advisory board, the Judicial Official would become a member of the organization.

Based upon the information provided, the four participating Committee members determined that the organization does not qualify as a Canon 4 entity devoted to the improvement of the law, the legal system or the administration of justice because it is a private organization conducted for the benefit of its members, specifically designed to develop business and referrals, and to conduct fee-producing programs. The organization, therefore, is within the ambit of Canon 5 activities. Based upon the facts relating to the organization that is the subject of this inquiry, in particular the fact that the Judicial Official would be supporting and promoting the obtaining and retaining of good clients and profitable business of a group of lawyers in private practice, the Committee determined that serving on the advisory board would violate Canon 2’s proscription on lending the prestige of judicial office to advance the private interests of others. In addition, the activity does not fall within the scope of permitted activities under Canon 5 and, accordingly, would violate the spirit, if not the letter, of Canon 5’s restrictions on extrajudicial activities. The Committee noted that the activity of information-sharing among members alone would not necessarily violate the Canons. Finally, the Committee observed that, consistent with its decision in this matter, Rule 3.11 of the proposed revised Code of Judicial Conduct explicitly would ban service as an officer, director, manager, general partner, or advisor of any business except for a business closely held by the judge or members of the judge’s family or a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.