2013-31 (June 27, 2013)
Extrajudicial Activities; Service on Board
Rules 1.2, 1.3, 3.1, & 3.7
 
Issue: May a Judicial Official serve on the Board of Directors of a law-related professional organization provided the Judicial Official does not participate in any fund-raising activities?
 
Additional Facts: The organization is an interdisciplinary association of professionals dedicated to conflict resolution. Members of the organization include, inter alia, lawyers, health professionals, mediators and policymakers. The organization is dedicated to enhancing the services of its members through education, training, research, and collaboration and generally improving the quality of the professionals who work within the field serviced by the organization.  The Judicial Branch has made payments in the past to the organization for services rendered to the Branch, memberships in the organization and/or for Branch personnel to attend educational programs. 
 
Relevant Code Provision: Rules 1.2, 1.3, 3.1 & 3.7
 
Discussion: Rule 1.2 of the Code of Judicial Conduct states that a judge “should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”

Rule 1.3 of the Code provides that a judge “shall not use or attempt to use the prestige of judicial office to advance the private interests of the judge or others or allow others to do so.”

Rule 3.1 of the Code provides that subject to certain conditions a judge “may engage in extrajudicial activities except as prohibited by law.” When engaging in extrajudicial activities, a judge shall not participate in activities that (1) will interfere with the proper performance of judicial duties, (2) will lead to frequent disqualification, (3) would appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, or (4) engage in conduct that would appear to a reasonable person to be coercive.

Similarly, Rule 3.7(a) provides that a judge “may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice… including,…(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity: (A) will be engaged in proceedings that would ordinarily come before the judge; or (B) will frequently be engaged in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.” The rule’s commentary states that “[e]ven for law related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely on a judge’s independence, integrity, and impartiality.” Rule 3.7, cmt. (2).

Based upon the information provided, including that the professional organization has received payments from the Judicial Branch and the likelihood that members of the organization will frequently be engaged in adversary proceedings in the court of which the Judicial Official is a member, the Committee unanimously determined that serving on the board of directors of the professional organization, regardless of whether or not the Judicial Official participated in fund-raising activities, would violate Rules 1.2, 1.3, 3.1 and 3.7. In reaching this opinion, the Committee considered JE 2013-15 (Judicial Official may not serve on board of a nonprofit that has multiple contracts with Judicial) and JE 2013-16 (Judicial Official may not serve as an officer, director or section leader for the CBA).