Issue:May a Judicial Official serve on an advisory board for a particular program of studies at a nonprofit educational institution?

Additional Facts: For the last several years, a recently appointed Judicial Official has taught a law-related college course. (Teaching now occurs outside court hours.) The nonprofit educational institution has invited the JO to become part of an advisory board related to the program of studies taught by the JO. The JO would like to serve on the Board and indicated that he/she would make it clear that he/she could not do any fund raising while a member of the board. The JO believes that his/her name would probably appear on college stationery promoting the program, unless the JO stipulated otherwise.

The invitation letter from the institution states: We would like someone from the legal profession to serve on our Advisory Board. This would involve attending perhaps one annual meeting to perform the following functions: review the progress of our program, observe activities conducted by current ... students, analyze projects underway and make suggestions for future directions in the program. We may also ask you for your written support as we apply for grant money to fund certain aspects of the program. As we plan our next meeting of the group, I write to ask now if you are interested in participating with us on this ... Advisory Board. If you wish to serve, please send me a letter of agreement on appropriate letterhead that we may keep on file and use as appropriate. If, on the other hand, you feel that there is another individual in the legal profession locally that might be a more appropriate person to serve on this board, please supply us with the name and contact information for that person. Thank you very much for your time and your commitment ....

According to the Judicial Branch’s Case Lookup, the educational institution has been a party to five lawsuits, over the past ten years, in the court of which the inquiring Judicial Official is a member.

Applicable Rules of Judicial Conduct: 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 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, (4) appear to a reasonable person to be coercive or (5) make use of court premises, staff, stationery, or other resources, except for incidental use.

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)(1) assisting such an organization or entity in planning related to fund-raising and participating in the management and investment of the organization’s or entity’s funds;

(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)(5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities 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 :

1. will be engaged in proceedings that would ordinarily come before the judge; or
2. 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 on the facts presented, including that the institution is not frequently involved in litigation and participation involves attending one annual meeting, the Committee unanimously determined that the Judicial Official may serve on the advisory board for a particular program of studies, 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;
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);
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); and
8. The Judicial Official may not issue letters of support to any public or private fund-granting organization. Rule 3.7(a)(5).

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).