Issue: May a Judicial Official serve on an advisory board for a non-law-related school within a nonprofit higher education institution?

Additional Facts:Neither the particular school nor the institution is concerned with the law, the legal system or the administration of justice. The advisory board does not have any fiduciary authority or have any role in the governance of the school; its role is solely advisory. The advisory board members assist the dean in carrying out the school’s mission, goals and objectives, actively participate in meetings, including raising ideas and issues of concern, serve on various committees or task forces, assist in obtaining financial support for the school through personal commitment and fundraising activities, as appropriate, serve as advocates and ambassadors for the school with alumni, business, governmental and other organizational leaders, parents and the community, assist in the recruitment, retention, career development, professional placement and educational experiences of students, and attend and participate in school sponsored activities. Advisory board members are asked to provide financial support. The funds are placed into an advisory board fund and allocated in accordance with the recommendations of the advisory board. In the past, the advisory board has been asked to provide input on, inter alia, the propriety of merging various academic departments, fundraising ideas, the school’s strategic plan and marketing efforts, creation of an alumni award, vetting nominations for such an award, and selection of awardees. In the future, the advisory board is expected to provide input on what can be done to better prepare students for careers, how to attract more students, and how to engage more alumni, including having alumni return to campus to discuss their career experiences with students.

For the past 10 years the educational institution has been a party to, on average, a couple of new lawsuits a year in the court of which the inquiring Judicial Official is a member.

Applicable Rules of Judicial Conduct: Rule 1.2 of Code 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 3.1 of the Code concerns extrajudicial activities and sets forth general limitations on such activities, such as not using court premises, staff or resources, except for incidental use or for activities that concern the law, the legal system, or the administration of justice unless otherwise permitted by law, and not participating in activities that (1) interfere with the proper performance of judicial duties, (2) lead to frequent disqualification, (3) appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, or (4) appear to a reasonable person to be coercive.

Rule 3.7 of the Code deals specifically with participation with educational, religious, charitable, fraternal and civic organizations and activities. It provides that, subject to the general requirements in Rule 3.1, a judge may participate in activities sponsored by or on behalf of educational organizations not conducted for profit including, but not limited to (a)(2) soliciting contributions for such an organization or entity, but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority; (a)(3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity but only if the organization or entity is concerned with the law, the legal system, or the administration of justice … (a)(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.

Response: Based upon the facts presented, the Committee unanimously determined that the inquiring Judicial Official may serve on the advisory panel and any committees or task forces subject to the following conditions:

1. The Judicial Official should regularly reexamine the activities of the advisory board to determine if it is proper to continue his or her relationship with the advisory board. Rule 1.2;
2. The Judicial Official may not use Judicial Branch resources for activities that concern the advisory board. Rule 3.1(5);
3. The Judicial Official may not continue to serve on the advisory board if the institution participates in activities that lead to frequent disqualification of the Judicial Official or otherwise becomes frequently engaged in adversary proceedings in the court on which the Judicial Official serves. Rules 3.1 & 3.7(a)(6);
4. The Judicial Official may assist the organization in planning related to fund-raising and may participate in the management and investment of its funds. Rule 3.7(a)(1);
5. The Judicial Official may not engage in a general solicitation of funds on behalf of the organization. Rule 3.7(a)(2). The Judicial Official only may solicit contributions for the organization from members of the Judicial Official’s family (as that term is defined in the Code) or from Judicial Officials over whom the soliciting Judicial Official does not exercise supervisory or appellate authority. Rule 3.7(a)(2);
6. The Judicial Official may appear or speak at, be featured on the program of, and permit his/her title to be used in connection with an organization event, but not if the event serves a fund-raising purpose. Rule 3.7(a)(4); and
7. The Judicial Official may permit his/her name and position with the organization to appear on letterhead used by the organization for fund-raising or membership solicitation but may permit his/her judicial title to appear on such letterhead only if comparable designations are used for other persons. Rule 3.7, cmt (4).
8. Service on the advisory board may not interfere with the proper performance of judicial duties. Rule 3.1(1); and
9. The Judicial Official may not solicit students to attend the school, as that is the functional equivalent to soliciting membership in an organization that is not concerned with the law, the legal system or the administration of justice. Rule 3.7(a)(3).

In reaching its decision, the Committee considered its prior opinion in JE 2012-28 (Judicial Official may accept an appointment to serve on the community advisory board of a nonprofit, non-law-related division of a higher education institution, subject to various conditions).