The Ethics Advisory Committee has been asked for its opinion on this question: Whether the Code of Judicial Conduct permits a judge to serve on the Board of Directors of United Way.

It is the committee's opinion that a judge may serve on the Board of Directors of United Way as long as the organization is not likely to be engaged in adversary proceedings and the judge is not involved in the fund-raising activities of the organization and does not permit the use of the judicial office for that purpose.

Canon 5 of the Code or Judicial Conduct provides that "A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial duties." Canon 5B further provides in part:

Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of an educational religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

(2) A judge should not solicit funds for any . . . charitable, or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but may be listed as an officer, director, or trustee of such an organization. A judge should not be the speaker or the guest of honor at an organization's fund raising events, but may attend such events. A judge should be especially sensitive to the potential conflicts which may result from serving in positions of responsibility in such organizations while carrying out judicial duties and limit the judge's duties in the area of solicitation of funds for the organization.

The Federal Advisory Committee on Judicial Activity has interpreted Canon 5(B)(1) in a number of factual situations and has concluded that a judge may not serve on the managing board of a legal aid bureau where its representatives make appearances in the court over which the judge presides. Similarly, the Committee has concluded that a judge cannot serve as an officer or director of the Sierra Club or the NAACP because these organizations may be regularly engaged in adversary proceedings in court. Advisory Opinion Nos. 12 and 4-0.

However, in the present situation, there is no factual basis to suggest that United Way's representatives or the organization itself are engaged in adversary proceedings that would ordinarily come before the judge or are regularly engaged in adversary proceedings in any court. Accordingly, it is the Committee's opinion that Canon 5(B)(1) would not prohibit a judge from serving on the Board of Directors for United Way.

Canon 5(B)(2) prohibits a judge from soliciting funds for any charitable organization or using the prestige of the judicial office for that purpose. In the fact situation presented, the Executive Director of United Way has written to the judge indicating that individual board members are not required to participate directly in the fund-raising process but that the board members oversee the fund-raising campaign in a general way. The only manner in which the judge would be affiliated with the fund-raising process is through the use of the organization's letterhead which lists the board members. Fund raising literature and press announcements do not identify individual board members. The Executive Director has also assured the judge that he would not be placed in any Board position which caused him concern about a potential conflict with the Code of Judicial Conduct.

By ensuring that neither he nor his office would be involved in United Way's fund-raising efforts, the judge has complied with Canon 5B(2).

The ABA Commentary to Canon 5 acknowledges that complete separation of a judge from extra-judicial activities "is neither possible nor wise; he should not become isolated from the society in which he lives. " Nevertheless the ABA Commentary to Canon 5B explains that due to the changing nature of organizations and their relationship to the law, a judge should regularly "reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue his relationship with it."

The Federal Advisory Committee on Judicial Activities has discussed the fund raising issue in a number of advisory opinions. The Committee has concluded that a judge may serve on the Board of Directors of the Salvation Army or the Red Cross provided his service does not interfere with the prompt and proper performance of his judicial duties and he does not engage in the solicitation or funds or permit the influence of his name or office to be used in solicitation. Advisory Opinion No. 2. Subject to the same restrictions, the Committee has concluded that a judge may serve on the managing board of a religious, fraternal or charitable corporation or the board of a hospital so long as he does not solicit funds or permit the use of the prestige of his office for that purpose. Advisory Opinion Nos. 12 and 28.

Accordingly, it is the committee's opinion that where a judge has separated himself from the fundraising aspect of a charitable organization and does not himself solicit funds nor permit the judicial office to be used for that purpose, membership on the organization's board of directors does not violate the Code of Judicial Conduct.